EXHIBIT 4.3
CLASS B-2 CERTIFICATE PURCHASE AGREEMENT
Dated as of October 16, 1998
among
SRI RECEIVABLES PURCHASE CO., INC.,
individually and as Transferor,
SPECIALTY RETAILERS, INC.,
individually and as Originator and Servicer,
THE CLASS B-2 PURCHASERS PARTIES HERETO,
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
Class B-2 Agent and Facility Agent
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Relating to
SRI Receivables Master Trust
Series 1997-1
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS 2
1.1 Definitions 2
1.2 Other Definitional Provisions 6
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 6
2.1 Purchases 7
2.2 Termination of Commitments 8
2.3 Fees, Expenses, Payments, Etc 8
2.4 Requirements of Law 9
2.5 Taxes 10
2.6 Indemnification 13
SECTION 3. CONDITIONS PRECEDENT 15
3.1 Condition to Effectiveness 15
3.2 Condition to Additional Purchase 17
SECTION 4. REPRESENTATIONS AND WARRANTIES 18
4.1 Representations and Warranties of SRPC 18
4.2 Representations and Warranties of SRI 20
4.3 Representations and Warranties of the Class B-2 Agent, the
Facility Agent and the Class B-2 Purchasers 22
SECTION 5. COVENANTS 22
5.1 Covenants of SRPC 22
SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY 25
6.1 Covenants of SRPC, Etc. 25
6.2 Covenants of Class B-2 Purchasers 26
SECTION 7. THE AGENTS 26
7.1 Appointment 26
7.2 Delegation of Duties 27
7.3 Exculpatory Provisions 27
7.4 Reliance by Agent 27
7.5 Notices 28
7.6 Non-Reliance on Agent and Other Class B-2 Purchasers 28
7.7 Indemnification 28
7.8 Agents in Their Individual Capacities 29
7.9 Successor Agent 29
SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT 30
8.1 Transfers of Class B-2 Certificates 30
8.2 Tax Characterization 33
SECTION 9. MISCELLANEOUS 33
9.1 Amendments and Waivers 33
9.2 Notices 34
9.3 No Waiver; Cumulative Remedies 35
9.4 Successors and Assigns 35
9.5 Successors to Servicer 35
9.6 Counterparts 36
9.7 Severability 37
9.8 Integration 37
9.9 Governing Law 37
9.10 Termination 37
9.11 Limited Recourse; No Proceedings 37
9.12 Survival of Representations and Warranties 38
9.13 Submission to Jurisdiction; Waivers 38
9.14 WAIVERS OF JURY TRIAL 39
LIST OF EXHIBITS
EXHIBIT A Form of Investment Letter
EXHIBIT B Form of Transfer Supplement
CLASS B-2 CERTIFICATE PURCHASE AGREEMENT, dated as of October 16,
1998, by and among SRI RECEIVABLES PURCHASE CO., INC., a Delaware corporation
("SRPC"), individually and as Transferor (as defined in the Master Pooling and
Servicing Agreement referred to below), SPECIALTY RETAILERS, INC., a Texas
corporation ("SRI"), individually and as Servicer (as defined in the Master
Pooling and Servicing Agreement referred to below), the CLASS B-2 PURCHASERS
from time to time parties hereto (collectively, the "CLASS B-2 PURCHASERS") and
CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation acting through its New
York Branch, as agent for the Class B-2 Purchasers (together with its successors
in such capacity, the "CLASS B-2 AGENT") and as facility agent for the Class B-2
Purchasers, the Class A Purchasers and the Class B Purchasers, each as defined
below (together with its successors in such capacity, the "FACILITY AGENT").
W I T N E S S E T H:
WHEREAS, SRPC, as Transferor, SRI, as Servicer, and Bankers Trust
(Delaware), a Delaware banking corporation, as trustee (together with its
successors in such capacity, the "TRUSTEE"), are parties to a certain Amended
and Restated Pooling and Servicing Agreement dated as of August 11, 1995, and
amended as of May 30, 1996 and as of August 1, 1998 (as the same may from time
to time be further amended or otherwise modified, the "MASTER POOLING AND
SERVICING AGREEMENT"), pursuant to which the Transferor has created the SRI
Receivables Master Trust (the "TRUST"), and to a Series 1997-1 Supplement
thereto, dated as of December 3, 1997, as amended as of September 28, 1998 and
as further amended and restated as set forth in the Amended and Restated Series
1997-1 Supplement, dated as of October 16, 1998 (the "RESTATED SUPPLEMENT"; such
Series 1997-1 Supplement, as so amended and restated and as the same may from
time to time be further amended or otherwise modified, the "SUPPLEMENT" and,
together with the Master Pooling and Servicing Agreement, the "POOLING AND
SERVICING AGREEMENT");
WHEREAS, the Trust has issued its Class A-1 Variable Funding
Certificates, Series 1997-1 (the "CLASS A CERTIFICATES"), its Class B-1 Variable
Funding Certificates, Series 1997-1 (the "CLASS B CERTIFICATES") and its Class
C-1 Variable Funding Certificates, Series 1997-1 (the "CLASS C CERTIFICATES")
pursuant to the Pooling and Servicing Agreement;
WHEREAS, the Trust proposes to issue its Class B-2 Variable Funding
Certificates, Series 1997-1 (the "CLASS B-2 CERTIFICATES" and, together with the
Class A Certificates, the Class B Certificates and the Class C Certificates, the
"SERIES 1997-1 CERTIFICATES"); and
WHEREAS, the Class B-2 Purchasers are willing to purchase the Class
B-2 Certificates on the Closing Date and from time to time thereafter to
purchase Additional Class B-2 Invested Amounts (as defined in the Supplement)
thereunder on the terms and conditions provided for herein;
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NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree as follows:
I. SECTION DEFINITIONS
A. DEFINITIONS. All capitalized terms used herein as defined terms and not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement. Each capitalized term defined herein shall relate only to
the Series 1997-1 and to no other Series of Investor Certificates issued by the
Trust.
"ADJUSTED BASE RATE" shall mean, for any day, a rate per annum equal
to the sum of (i) the CSFB Corporate Base Rate in effect for such day, plus (ii)
the Class B-2 Margin.
"AGREEMENT" shall mean this Class B-2 Certificate Purchase
Agreement, as amended, supplemented or otherwise modified from time to time.
"ASSIGNEE" and "ASSIGNMENT" have the respective meanings specified
in subsection 8.1(e) of this Agreement.
"AVAILABLE COMMITMENT" shall mean, on any day for a Class B-2
Purchaser, such Class B-2 Purchaser's Commitment in effect on such day MINUS
such Class B-2 Purchaser's Percentage Interest of the Class B-2 Principal
Balance on such day.
"CLASS A CERTIFICATES" has the meaning specified in the recitals
to this Agreement.
"CLASS A PURCHASE AGREEMENT" shall mean the Class A Certificate
Purchase Agreement, dated as of December 3, 1997, among SRPC, individually and
as Transferor, SRI, individually and as Servicer, the Class A Purchasers parties
thereto, the Class A Agent referred to therein and the Facility Agent, as
modified as of September 28, 1998 and amended as of the date hereof, and as
further amended, modified or otherwise supplemented from time to time.
"CLASS A PURCHASERS" has the meaning specified in the Class A
Purchase Agreement.
"CLASS B PURCHASE AGREEMENT" shall mean the Class B Certificate
Purchase Agreement, dated as of December 3, 1997, among SRPC, individually and
as Transferor, SRI, individually and as Servicer, the Class B Purchasers parties
thereto, the Class B Agent referred to therein and the Facility Agent, as
modified as of September 28, 1998 and amended as of the date hereof, and as
further amended, modified or otherwise supplemented from time to time.
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"CLASS B PURCHASERS" has the meaning specified in the Class B
Purchase Agreement.
"CLASS B-2 AGENT" has the meaning specified in the preamble to
this Agreement.
"CLASS B-2 CERTIFICATE RATE" has the meaning specified in
subsection 2.1(f) of this Agreement.
"CLASS B-2 CERTIFICATES" has the meaning specified in the
recitals to this Agreement.
"CLASS B-2 COMMITMENT FEE" shall mean the ongoing commitment fees
payable to the Class B-2 Agent or the Class B-2 Purchasers in the amounts and on
the dates set forth in the Class B-2 Fee Letter.
"CLASS B-2 FEE LETTER" shall mean that certain letter agreement,
designated therein as the Series 1997-1 Class B-2 Fee Letter and dated as of the
date hereof, among the Class B-2 Agent, SRPC and SRI, as such letter agreement
may be amended or otherwise modified from time to time.
"CLASS B-2 MARGIN" has the meaning specified in the Class B-2 Fee
Letter.
"CLASS B-2 OWNERS" shall mean the Class B-2 Purchasers that are
owners of record of the Class B-2 Certificates or, with respect to any Class B-2
Certificate held by the Class B-2 Agent hereunder as nominee on behalf of Class
B-2 Purchasers, the Class B-2 Purchasers that are owners of the Class B-2
Invested Amount represented by such Class B-2 Certificate as reflected on the
books of the Class B-2 Agent in accordance with this Agreement.
"CLASS B-2 PURCHASE LIMIT" shall mean $10,000,000.
"CLASS B-2 PURCHASER" has the meaning specified in the preamble
to this Agreement.
"CLASS B-2 REPAYMENT AMOUNT" shall mean the sum of all amounts
payable with respect to (i) the Class B-2 Invested Amount, (ii) Class B-2
Interest and (iii) all amounts payable pursuant to Section 2.4 or 2.5 hereof.
"CLASS C CERTIFICATES" has the meaning specified in the recitals
to this Agreement.
"CLOSING DATE" shall mean October 16, 1998.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
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"COMMITMENT" shall mean, for any Class B-2 Purchaser, the maximum
amount of such Class B-2 Purchaser's commitment to purchase a portion of the
Class B-2 Invested Amount, as set forth opposite such Class B-2 Purchaser's
signature to this Agreement or the Transfer Supplement by which such Class B-2
Purchaser became a party to this Agreement or assumed the Commitment (or a
portion thereof) of another Class B-2 Purchaser, as such amount may be adjusted
from time to time pursuant to Transfer Supplement(s) executed by such Class B-2
Purchaser and its Assignee(s) and delivered pursuant to Section 8.1 of this
Agreement or pursuant to Section 2.2 of this Agreement..
"COMMITMENT EXPIRATION DATE" shall mean December 24, 1998.
"COMMITMENT PERCENTAGE" shall mean, for a Class B-2 Purchaser, such
Class B-2 Purchaser's Commitment as a percentage of the aggregate Commitments of
all Class B-2 Purchasers.
"EXCLUDED TAXES" has the meaning specified in subsection 2.5(a)
of this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GRANITE" shall mean Granite National Bank, N.A., a national banking
association, which is a subsidiary of Stage.
"INDEMNITEE" has the meaning specified in subsection 2.6(a) of
this Agreement.
"INDEMNITOR" has the meaning specified in subsection 2.6(a) of
this Agreement.
"INVESTING OFFICE" shall mean initially, the office of any Class B-2
Purchaser (if any) designated as such, in the case of the initial Class B-2
Purchaser, as set forth opposite its signature to this Agreement or, in the case
of an Assignee, in the related Transfer Supplement, and thereafter, such other
office of such Class B-2 Purchaser or such Assignee as may be designated in
writing to the Class B-2 Agent, the Transferor, the Servicer and the Trustee by
such Class B-2 Purchaser or Assignee.
"INVESTMENT LETTER" has the meaning specified in subsection
8.1(a) of this Agreement.
"MASTER POOLING AND SERVICING AGREEMENT" has the meaning
specified in the recitals to this Agreement.
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"PARTICIPANT" has the meaning specified in subsection 8.1(d) of
this Agreement.
"PARTICIPATION" has the meaning specified in subsection 8.1(d) of
the Agreement.
"PERCENTAGE INTEREST" shall mean, for a Class B-2 Purchaser on any
day, the percentage equivalent of (a) the sum of (i) the portion of the Class
B-2 Initial Invested Amount (if any) purchased by such Class B-2 Purchaser, PLUS
(ii) the aggregate Additional Class B-2 Invested Amounts (if any) purchased by
such Class B-2 Purchaser prior to such day pursuant to Section 6.15 of the
Pooling and Servicing Agreement, PLUS (iii) any portion of the Class B-2
Principal Balance acquired by such Class B-2 Purchaser as an Assignee from
another Class B-2 Purchaser pursuant to a Transfer Supplement executed and
delivered pursuant to Section 8.1 of this Agreement, MINUS (iv) the aggregate
amount of principal payments made to such Class B-2 Purchaser prior to such day,
MINUS (v) any portion of the Class B-2 Principal Balance assigned by such Class
B-2 Purchaser to an Assignee pursuant to a Transfer Supplement executed and
delivered pursuant to Section 8.1 of this Agreement, DIVIDED BY (b) the
aggregate Class B-2 Principal Balance on such day.
"POOLING AND SERVICING AGREEMENT" has the meaning specified in
the recitals to this Agreement.
"PURCHASE DATE" shall mean the Closing Date and each Business Day on
which the purchase of an Additional Class B-2 Invested Amount is to occur in
accordance with Section 6.15 of the Pooling and Servicing Agreement and Section
2.1 hereof.
"RECEIVABLES TRANSFER AGREEMENT" shall mean the Receivables Transfer
Agreement, dated as of August 1, 1998, between SRI, as purchaser, and Granite,
as transferor, as the same may from time to time be amended or otherwise
modified.
"REGULATORY CHANGE" shall mean, as to each Class B-2 Purchaser, any
change occurring after the date of the execution and delivery of this Agreement
or, in the case of an Assignee, of the Transfer Supplement by which it became
party to this Agreement and, as to each Participant, any change occurring after
the date on which its Participation became effective, in any (or the adoption
after such date of any new):
(i) United States Federal or state law or foreign law applicable to
such Class B-2 Purchaser or Participant; or
(ii) regulation, interpretation, directive, guideline or request
(whether or not having the force of law) applicable to such Class B-2
Purchaser or Participant of any court or other judicial authority or any
Governmental Authority charged with the interpretation or administration
of any law referred to in clause (i) or of any fiscal, monetary or other
Governmental Authority or central bank having jurisdiction over such Class
B-2 Purchaser or Participant.
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"RELATED DOCUMENTS" shall mean, collectively, this Agreement
(including the Class B-2 Fee Letter and all Transfer Supplements), the Class A
Purchase Agreement, the Class B Purchase Agreement, the Master Pooling and
Servicing Agreement, the Supplement, the Series 1997-1 Certificates, the
Receivables Purchase Agreement and the Receivables Transfer Agreement.
"REQUIRED CLASS B-2 PURCHASERS" shall mean, at any time, Class B-2
Purchasers having Commitments aggregating greater than 66-2/3% of the aggregate
Commitments of all Class B-2 Purchasers or, if the Commitments have terminated,
having Percentage Interests aggregating greater than 66-2/3%.
"REQUIREMENT OF LAW" shall mean, as to any Person, any law, treaty,
rule or regulation, or determination of an arbitrator or Governmental Authority,
in each case applicable to or binding upon such Person or to which such Person
is subject, whether federal, state or local (including usury laws, the Federal
Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors
of the Federal Reserve System).
"RESTATED SUPPLEMENT" has the meaning specified in the recitals
to this Agreement.
"RISK RATE" shall mean, for any day, a rate per annum equal to the
sum of (i) the Adjusted Base Rate in effect for such day, plus (ii) 2.00%.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SERIES 1997-1 CERTIFICATES" has the meaning specified in the
recitals to this Agreement.
"SRI" has the meaning specified in the preamble to this Agreement
and, as used herein (except to the extent that the context otherwise requires),
shall mean SRI in its individual capacity (including its capacity as
Originator).
"STAGE" shall mean Stage Stores, Inc., a Delaware corporation which
is the parent of SRI.
"TAXES" has the meaning specified in subsection 2.5(a) of this
Agreement.
"TERMINATION DATE" shall mean the first to occur of (i) the
Commitment Expiration Date or (ii) the Amortization Period Commencement Date.
"TERMINATION EVENT" shall mean the occurrence of a Trust Pay Out
Event, a Series 1997-1 Pay Out Event or a Servicer Default, or the occurrence of
an event or condition which would be a Trust Pay Out Event, a Series 1997-1 Pay
Out Event or a
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Servicer Default but for a waiver of or failure to declare or determine such
event by the Certificateholders or the Trustee.
"TRANSFER" has the meaning specified in subsection 8.1(c) of this
Agreement.
"TRANSFEREE" has the meaning specified in subsection 8.1(c) of
this Agreement.
"TRANSFER SUPPLEMENT" has the meaning specified in subsection
8.1(e) of this Agreement.
"TRUST" has the meaning specified in the recitals to this
Agreement.
"TRUSTEE" has the meaning specified in the recitals to this
Agreement.
"UTILIZATION FEE" has the meaning specified in the Class B-2 Fee
Letter.
"WRITTEN" or "IN WRITING" (and other variations thereof) shall mean
any form of written communication or a communication by means of telex,
telecopier device, telegraph or cable.
A. OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto.
(b) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection and Exhibit references are to this Agreement, unless otherwise
specified. The words "including" and "include" shall be deemed to be followed by
the words "without limitation".
I. SECTION AMOUNT AND TERMS OF COMMITMENTS
A. PURCHASES. (a) On and subject to the terms and conditions of this Agreement,
and in consideration of the Commitment of the Class B-2 Purchasers set forth
herein, the Transferor agrees to sell to the Class B-2 Purchasers, and each
Class B-2 Purchaser, severally, agrees to purchase its Commitment Percentage of,
the Class B-2 Certificates on the Closing Date. The Class B-2 Initial Invested
Amount shall be $0. The Class B-2 Purchasers hereby direct that the Class B-2
Certificates be registered in the name of the Class B-2 Agent, as nominee on
behalf of the Class B-2 Purchasers from time to time hereunder.
(b) On and subject to the terms and conditions of this Agreement and
prior to the Termination Date, each Class B-2 Purchaser, severally, agrees to
purchase its Commitment Percentage of any Additional Class B-2 Invested Amount
offered for
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purchase pursuant to Section 6.15 of the Pooling and Servicing Agreement, in
each case for a purchase price equal to the Additional Class B-2 Invested Amount
so purchased; PROVIDED that in no event shall a Class B-2 Purchaser be required
on any date to purchase an Additional Class B-2 Invested Amount exceeding its
Available Commitment, determined prior to giving effect to such purchase. Such
purchase price shall be made available to the Transferor, subject to the
satisfaction of the conditions specified in Section 3.2 hereof, at or prior to
11:00 a.m. New York City time on the applicable Purchase Date by deposit of
immediately available funds to an account or accounts specified in writing by
the Transferor to the Class B-2 Agent.
(c) Each purchase of any Additional Class B-2 Invested Amount on the
applicable Purchase Date shall be made on prior notice from the Transferor
received by the Class B-2 Agent not later than 2:00 p.m. New York City time on
the Business Day immediately preceding such Purchase Date. Each such notice
shall be irrevocable and shall specify (i) the aggregate Additional Class B-2
Invested Amount to be purchased (which shall be an amount equal to $500,000 or
an integral multiple of $100,000 in excess of such amount), (ii) the applicable
Purchase Date (which shall be a Business Day), and (iii) instructions as to the
deposit of the proceeds of the purchase. The Class B-2 Agent shall promptly
forward a copy of such notice to each Class B-2 Purchaser. Unless the Required
Class B-2 Purchasers and the Class B-2 Agent shall otherwise consent, there may
not be more than two (2) Purchase Dates in any calendar week.
(d) In no event may any Additional Class B-2 Invested Amount be
offered for purchase hereunder or under Section 6.15 of the Pooling and
Servicing Agreement, nor shall any Class B-2 Purchaser be obligated to purchase
any Additional Class B-2 Invested Amount, to the extent that such Additional
Class B-2 Invested Amount would exceed the aggregate Available Commitments.
(e) The Class B-2 Certificates shall be paid as provided in the
Pooling and Servicing Agreement, and the Class B-2 Agent shall allocate to the
Class B-2 Owners each payment in respect of the Class B-2 Certificates received
by the Class B-2 Agent in its capacity as Class B-2 Certificateholder as
provided therein. Payments in reduction of the Class B-2 Principal Balance shall
be applied to Class B-2 Owners pro rata based on their respective Percentage
Interests of the Class B-2 Principal Balance, or in any such case in such other
proportions as each affected Class B-2 Purchaser may agree upon in writing from
time to time with the Facility Agent, the Class B-2 Agent, SRPC and SRI.
(f) For purposes of the Supplement, a portion of the Class B-2
Principal Balance equal to the Class B-2 Invested Amount shall bear interest on
each day at a rate per annum equal to the Adjusted Base Rate for such day, and
the remaining portion of the Class B-2 Principal Balance shall bear interest on
each such day at a rate per annum equal to the Risk Rate for such day. For
purposes of the Supplement, the "CLASS B-2 CERTIFICATE RATE" shall mean, for
each day, the weighted average of the Adjusted Base Rate and the Risk Rate for
such day (based on said respective portions of the Class B-2 Principal Balance),
and, for each Interest Accrual Period, the average of the Class B-2 Certificate
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Rates for each day during such Interest Accrual Period. Such calculations of
interest shall be based on the actual number of days elapsed in a year having
365 or 366 days (as the case may be).
A. TERMINATION OF COMMITMENTS. On the Termination Date, all
Commitments shall be reduced to zero and terminate.
A. FEES, EXPENSES, PAYMENTS, ETC. (a) SRPC agrees to pay to
the Class B-2 Agent for the account of the Class B-2 Purchasers the Class B-2
Commitment Fee and other amounts set forth in the Class B-2 Fee Letter at the
times specified therein.
(b) SRPC further agrees to pay within 30 days following receipt of
an invoice therefor to the Class B-2 Agent, the Facility Agent and the initial
Class B-2 Purchasers all reasonable costs and expenses in connection with the
preparation, execution, delivery, initial syndication, administration (including
any requested amendments, waivers or consents of any of the Related Documents)
of this Agreement, and the other documents to be delivered hereunder or in
connection herewith, including the reasonable fees and out-of-pocket expenses of
counsel for the Class B-2 Agent, the Facility Agent and each of the initial
Class B-2 Purchasers with respect thereto.
(c) SRI agrees to pay to the Class B-2 Agent, the Facility Agent and
each Class B-2 Purchaser, promptly following presentation of an invoice
therefor, all reasonable costs and expenses (including reasonable fees and
expenses of counsel), if any, in connection with the enforcement of any of the
Related Documents, and the other documents delivered thereunder or in connection
therewith.
(d) SRI further agrees to pay on demand any and all stamp, transfer
and other taxes (other than Taxes covered by Section 2.5) and governmental fees
payable in connection with the execution, delivery, filing and recording of any
of the Related Documents or the other documents and agreements to be delivered
hereunder and thereunder or otherwise in connection with the issuance of Series
1997-1, and agrees to save each Class B-2 Purchaser and the Class B-2 Agent and
the Facility Agent harmless from and against any liabilities with respect to or
resulting from any delay in paying or any omission to pay such taxes and fees.
(e) Periodic fees or other periodic amounts payable hereunder shall
be calculated, unless otherwise specified in the Class B-2 Fee Letter, on the
basis of a 360-day year and for the actual days elapsed.
(f) All payments to be made hereunder or under the Supplement,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 2:30 p.m., New York
City time, on the due date thereof to the Class B-2 Agent's account specified in
subsection 9.2(b) hereof, in United States dollars and in immediately available
funds. Payments received by the Class B-2 Agent after 2:30 p.m. New York City
time shall be deemed to have been made on the next Business Day. Notwithstanding
anything herein to the contrary, if any payment due hereunder becomes due and
payable on a day other than a Business Day, the payment
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date thereof shall be extended to the next succeeding Business Day and interest
shall accrue thereon at the applicable rate during such extension. To the extent
that (i) the Trustee, SRPC, SRI, the Transferor or the Servicer makes a payment
to the Class B-2 Agent, the Facility Agent or a Class B-2 Purchaser or (ii) the
Class B-2 Agent, the Facility Agent or a Class B-2 Purchaser receives or is
deemed to have received any payment or proceeds for application to an
obligation, which payment or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party under any bankruptcy or
insolvency law, state or Federal law, common law, or for equitable cause, then,
to the extent such payment or proceeds are set aside, the obligation or part
thereof intended to be satisfied shall be revived and continue in full force and
effect, as if such payment or proceeds had not been received or deemed received
by the Class B-2 Agent, the Facility Agent or the Class B-2 Purchaser, as the
case may be.
(g) The obligations of SRPC under this Section 2.3 are subject to
subsection 9.11(a) hereof.
1. REQUIREMENTS OF LAW. In the event that any Class B-2 Purchaser shall have
reasonably determined that any Regulatory Change shall:
(i) subject such Class B-2 Purchaser to any tax of any kind
whatsoever with respect to this Agreement, its Commitment or its
beneficial interest in the Class B-2 Certificates, or change the basis of
taxation of payments in respect thereof (except for Taxes covered by
Section 2.5 and taxes included in the definition of Excluded Taxes in
subsection 2.5(a) and changes in the rate of tax on the overall net income
of such Class B-2 Purchaser); or
(ii) impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, such
Class B-2 Purchaser;
and the result of any of the foregoing is to increase the cost to such Class B-2
Purchaser, by an amount which such Class B-2 Purchaser deems to be material, of
maintaining its Commitment or its interest in the Class B-2 Certificates or to
reduce any amount receivable in respect thereof, THEN, in any such case, after
submission by such Class B-2 Purchaser to the Class B-2 Agent of a written
request therefor and the submission by the Class B-2 Agent to the Transferor and
the Servicer of such written request therefor, the Transferor (subject to
subsection 9.11(a) hereof) shall pay to the Class B-2 Agent for the account of
such Class B-2 Purchaser any additional amounts necessary to compensate such
Class B-2 Purchaser for such increased cost or reduced amount receivable,
together with interest on each such amount from the Distribution Date following
receipt by the Transferor of such request for compensation under this subsection
2.4(a), if such request is received by the Transferor at least five Business
Days prior to the Determination Date related to such Distribution Date, and
otherwise from the following Distribution Date,
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until payment in full thereof (after as well as before judgment) at the Risk
Rate in effect from time to time.
1. In the event that any Class B-2 Purchaser shall have determined that any
Regulatory Change regarding capital adequacy has the effect of reducing the rate
of return on such Class B-2 Purchaser's capital or on the capital of any
corporation controlling such Class B-2 Purchaser as a consequence of its
obligations hereunder or its maintenance of its Commitment or its interest in
the Class B-2 Certificates to a level below that which such Class B-2 Purchaser
or such corporation could have achieved but for such Regulatory Change (taking
into consideration such Class B-2 Purchaser's or such corporation's policies
with respect to capital adequacy) by an amount deemed by such Class B-2
Purchaser to be material, THEN, from time to time, after submission by such
Class B-2 Purchaser to the Class B-2 Agent of a written request therefor and
submission by the Class B-2 Agent to the Transferor and the Servicer of such
written request therefor, the Transferor (subject to subsection 9.11(a) hereof)
shall pay to the Class B-2 Agent for the account of such Class B-2 Purchaser
such additional amount or amounts as will compensate such Class B-2 Purchaser
for such reduction, together with interest on each such amount from the
Distribution Date following receipt by the Transferor of such request for
compensation under this subsection 2.4(b), if such request is received by the
Transferor at least five Business Days prior to the Determination Date related
to such Distribution Date, and otherwise from the following Distribution Date,
until payment in full thereof (after as well as before judgment) at the Risk
Rate in effect from time to time.
1. Each Class B-2 Purchaser agrees that it shall use its reasonable efforts to
reduce or eliminate any claim for compensation pursuant to subsections 2.4(a)
and 2.4(b), including but not limited to designating a different Investing
Office for its Class B-2 Certificates (or any interest therein) if such
designation will avoid the need for, or reduce the amount of, any increased
amounts referred to in subsection 2.4(a) or 2.4(b) and will not, in the
reasonable opinion of such Class B-2 Purchaser, be unlawful or otherwise
disadvantageous to such Class B-2 Purchaser or inconsistent with its policies or
result in an unreimbursed cost or expense to such Class B-2 Purchaser or in an
increase in the aggregate amount payable under both subsections 2.4(a) and
2.4(b).
1. Each Class B-2 Purchaser claiming increased amounts described in subsection
2.4(a) or 2.4(b) will furnish to the Class B-2 Agent (together with its request
for compensation) a certificate prepared in good faith setting forth the basis
and the calculation of the amount (in reasonable detail) of each request by such
Class B-2 Purchaser for any such increased amounts referred to in subsection
2.4(a) or 2.4(b). Any such certificate shall be conclusive absent manifest
error, and the Class B-2 Agent shall deliver a copy thereof to the Transferor
and the Servicer. Failure on the part of any Class B-2 Purchaser to demand
compensation for any amount pursuant to subsection 2.4(a) or 2.4(b) with respect
to any period shall not constitute a waiver of such Class B-2 Purchaser's right
to demand compensation with respect to such period.
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(a) TAXES. All payments made to the Class B-2 Purchasers, the Facility Agent or
the Class B-2 Agent under this Agreement and the Pooling and Servicing Agreement
(including all amounts payable with respect to the Class B-2 Certificates)
shall, to the extent allowed by law, be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (collectively, "TAXES"), excluding (i) income
taxes (including branch profit taxes, minimum taxes and taxes computed under
alternative methods, at least one of which is based on or measured by net
income), franchise taxes (imposed in lieu of income taxes), or any other taxes
based on or measured by the net income of the Class B-2 Purchaser, the Facility
Agent or the Class B-2 Agent (as the case may be) or the gross receipts or
income of the Class B-2 Purchaser, the Facility Agent or the Class B-2 Agent (as
the case may be); (ii) any Taxes that would not have been imposed but for the
failure of such Class B-2 Purchaser, the Facility Agent or the Class B-2 Agent,
as applicable, to provide and keep current (to the extent legally able) any
certification or other documentation required to qualify for an exemption from,
or reduced rate of, any such Taxes or required by this Agreement to be furnished
by such Class B-2 Purchaser, the Facility Agent or the Class B-2 Agent, as
applicable; and (iii) any Taxes imposed as a result of a change by any Class B-2
Purchaser of the Investing Office (other than changes mandated by this
Agreement, including subsection 2.4(c) hereof, or required by law) (all such
excluded taxes being hereinafter called "EXCLUDED TAXES"). If any Taxes, other
than Excluded Taxes, are required to be withheld from any amounts payable to a
Class B-2 Purchaser, the Facility Agent or the Class B-2 Agent hereunder or
under the Pooling and Servicing Agreement, THEN after submission by any Class
B-2 Purchaser to the Class B-2 Agent (in the case of an amount payable to a
Class B-2 Purchaser) and by the Facility Agent or the Class B-2 Agent to the
Transferor and the Servicer of a written request therefor, the amounts so
payable to such Class B-2 Purchaser, the Facility Agent or the Class B-2 Agent,
as applicable, shall be increased and the Transferor shall be liable to pay to
the Class B-2 Agent for the account of the Facility Agent or such Class B-2
Purchaser or for its own account, as applicable, the amount of such increase) to
the extent necessary to yield to such Class B-2 Purchaser, the Facility Agent or
the Class B-2 Agent, as applicable (after payment of all such Taxes) interest or
any such other amounts payable hereunder or thereunder at the rates or in the
amounts specified in this Agreement and the Pooling and Servicing Agreement;
provided, HOWEVER, that the amounts so payable to such Class B-2 Purchaser, the
Facility Agent or the Class B-2 Agent shall not be increased pursuant to this
subsection 2.5(a) if such requirement to withhold results from the failure of
such Person to comply with subsection 2.5(c) hereof. Whenever any Taxes are
payable on or with respect to amounts distributed to a Class B-2 Purchaser, the
Facility Agent or the Class B-2 Agent, as promptly as possible thereafter the
Servicer shall send to the Class B-2 Agent, on behalf of such Class B-2
Purchaser (if applicable), a certified copy of an original official receipt
showing payment thereof. If the Trustee, upon the direction of the Servicer,
fails to pay any Taxes when due to the appropriate taxing authority or fails to
remit to the Class B-2 Agent, on behalf of itself or the Facility Agent or such
Class B-2 Purchaser (as applicable), the required receipts or other required
documentary evidence, subject to subsection 9.11(a), the Transferor shall pay to
the
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Class B-2 Agent on behalf of such Class B-2 Purchaser or the Facility Agent or
for its own account, as applicable, any incremental taxes, interest or penalties
that may become payable by such Class B-2 Purchaser, the Facility Agent or the
Class B-2 Agent, as applicable, as a result of any such failure.
(a) A Class B-2 Purchaser or the Facility Agent claiming increased amounts under
subsection 2.5(a) for Taxes paid or payable by such Class B-2 Purchaser or the
Facility Agent, as applicable, will furnish to the Class B-2 Agent a certificate
prepared in good faith setting forth the basis and amount of each request by
such Class B-2 Purchaser or the Facility Agent, as applicable, for such Taxes,
and the Class B-2 Agent shall deliver a copy thereof to the Transferor and the
Servicer. The Class B-2 Agent claiming increased amounts under subsection 2.5(a)
for its own account for Taxes paid or payable by the Class B-2 Agent will
furnish to the Transferor and the Servicer a certificate prepared in good faith
setting forth the basis and amount of each request by the Class B-2 Agent for
such Taxes. Any such certificate of a Class B-2 Purchaser, the Facility Agent or
the Class B-2 Agent shall be conclusive absent manifest error. Failure on the
part of any Class B-2 Purchaser, the Facility Agent or the Class B-2 Agent to
demand additional amounts pursuant to subsection 2.5(a) with respect to any
period shall not constitute a waiver of the right of such Class B-2 Purchaser,
the Facility Agent or the Class B-2 Agent, as the case may be, to demand
compensation with respect to such period. All such amounts shall be due and
payable to the Class B-2 Agent on behalf of the Facility Agent or such Class B-2
Purchaser or for its own account, as the case may be, on the Distribution Date
following receipt by the Transferor of such certificate, if such certificate is
received by the Transferor at least five Business Days prior to the
Determination Date related to such Distribution Date and otherwise shall be due
and payable on the following Distribution Date (or, if earlier, on the Series
1997-1 Termination Date).
(a) Each Class B-2 Purchaser and each Participant holding an interest in Class
B-2 Certificates agrees that prior to the date on which the first interest or
fee payment hereunder is due thereto, it will deliver to the Transferor, the
Servicer, the Trustee and the Class B-2 Agent (i) if such Class B-2 Purchaser or
Participant is not incorporated under the laws of the United States or any State
thereof, two duly completed copies of the U.S. Internal Revenue Service Form
4224 or successor applicable forms required to evidence that the Class B-2
Purchaser's or Participant's income from this Agreement or the Class B-2
Certificates is "effectively connected" with the conduct of a trade or business
in the United States, and (ii) a duly completed U.S. Internal Revenue Service
Form W-8 or W-9 or successor applicable or required forms. Each Class B-2
Purchaser or Participant holding an interest in Class B-2 Certificates also
agrees to deliver to the Transferor, the Servicer, the Trustee and the Class B-2
Agent two further copies of such Form 4224 and Form W-8 or W-9, or such
successor applicable forms or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by it hereunder, and such extensions or renewals thereof as
may reasonably be requested by the Servicer or the Class B-2 Agent, unless in
any such case, solely as a result of a change in treaty, law or regulation
occurring prior to
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the date on which any such delivery would otherwise be required, and assuming
that Section 1446 of the Code does not apply, the Class B-2 Purchaser is no
longer eligible to deliver the then-applicable form set forth above and so
advises the Servicer and the Class B-2 Agent. Each initial Class B-2 Purchaser
certifies, represents and warrants as of the effective date of this Agreement,
and each Assignee and each Participant shall certify, represent and warrant as a
condition of acquiring its Assignment or Participation as of the effect date of
the Transfer Supplement to which it is a party or of such Participation, as the
case may be, that (x) in the case of Form 4224 (if applicable), its income from
this Agreement or the Class B-2 Certificates is effectively connected with a
United States trade or business and (y) that it is entitled to an exemption from
United States backup withholding tax. Further, each Class B-2 Purchaser and each
Participant acquiring an interest in a Class B-2 Certificate covenants that for
so long as it shall own Class B-2 Certificates or such Participation, such Class
B-2 Certificates or Participation shall be held in such manner that the income
therefrom shall be effectively connected with the conduct of a United States
trade or business.
1. INDEMNIFICATION. SRI and SRPC (each such Person being referred to as an
"INDEMNITOR"), jointly and severally, agree to indemnify and hold harmless the
Class B-2 Agent, the Facility Agent and each Class B-2 Purchaser and any
directors, officers, employees, agents, attorneys, auditors or accountants of
the Class B-2 Agent, the Facility Agent or Class B-2 Purchaser (each such Person
being referred to as an "INDEMNITEE") from and against any and all claims,
damages, losses, liabilities, costs or expenses whatsoever (including reasonable
fees and expenses of legal counsel) which such Indemnitee may incur (or which
may be claimed against such Indemnitee) arising out of, by reason of or in
connection with the execution and delivery of, or payment or other performance
under, or the failure to make payments or perform under, any Related Document or
the issuance of the Series 1997-1 Certificates (including in connection with the
preparation for defense of any investigation, litigation or proceeding arising
out of, related to or in connection with such execution, delivery, payment,
performance or issuance), except (i) to the extent that any such claim, damage,
loss, liability, cost or expense is shall be caused by the willful misconduct,
bad faith, recklessness or gross negligence of such Indemnitee, (ii) to the
extent that any such claim, damage, loss, liability, cost or expense is covered
by subsection 2.3(c) or Section 2.4 or 2.5 hereof or relates to any Excluded
Taxes, (iii) to the extent that any such claim, damage, loss, liability, cost or
expense relates to disclosure made by the Class B-2 Agent or a Class B-2
Purchaser in connection with an Assignment or Participation pursuant to Section
8.1 of this Agreement which disclosure is not based on information given to the
Class B-2 Agent or such Class B-2 Purchaser by or on behalf of SRPC, SRI, the
Transferor or the Servicer or any affiliate thereof or by or on behalf of the
Trustee or (iv) to the extent that such claim, damage, loss, liability, cost or
expense shall be caused by a charge off of Receivables. The foregoing indemnity
shall include any claims, damages, losses, liabilities, costs or expenses to
which any such Indemnitee may become subject under Securities Act, the
Securities Exchange Act of 1934, as amended, the Investment Company Act of 1940,
as amended, or other federal or state law or regulation arising out of or based
upon any untrue statement or alleged untrue statement of a material fact in any
disclosure document relating to the Series 1997-1 Certificates or any amendments
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thereof or supplements thereto (other than statements provided by the Indemnitee
expressly for inclusion therein) or arising out of, or based upon, the omission
or the alleged omission to state a material fact necessary to make the
statements therein or any amendment thereof or supplement thereto, in light of
the circumstances in which they were made, not misleading (other than with
respect to statements provided by the Indemnitee expressly for inclusion
therein).
1. Promptly after the receipt by an Indemnitee of a notice of the commencement
of any action against an Indemnitee, such Indemnitee will notify the Class B-2
Agent and the Class B-2 Agent will, if a claim in respect thereof is to be made
against an Indemnitor pursuant to subsection 2.6(a), notify such Indemnitor in
writing of the commencement thereof; but the omission so to notify such party
will not relieve such party from any liability which it may have to such
Indemnitee pursuant to the preceding paragraph. If any such action is brought
against an Indemnitee and it notifies an Indemnitor of its commencement, such
Indemnitor will be entitled to participate in and, to the extent that it so
elects by delivering written notice to the Indemnitee promptly after receiving
notice of the commencement of the action from the Indemnitee to assume the
defense of any such action, with counsel mutually satisfactory to such
Indemnitor and each affected Indemnitee. After receipt of such notice by an
Indemnitor from an Indemnitee, such Indemnitor will not be liable to such
Indemnitee for any legal or other expenses except as provided below and except
for the reasonable costs of investigation subsequently incurred by the
Indemnitee in connection with the defense of such action. Each Indemnitee will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
Indemnitee unless (i) the employment of such counsel by such Indemnitee has been
authorized in writing by such Indemnitor, (ii) such Indemnitor shall have failed
to assume the defense and employ counsel, (iii) the named parties to any such
action or proceeding (including any impleaded parties) include both such
Indemnitee and either an Indemnitor or another person or entity that may be
entitled to indemnification from an Indemnitor (by virtue of this Section 2.6 or
otherwise) and such Indemnitee shall have been advised by counsel that there may
be one or more legal defenses available to such Indemnitee which are different
from or additional to those available to an Indemnitor or such other party or
shall otherwise have reasonably determined that the co-representation would
present such counsel with a conflict of interest (in which case the Indemnitor
will not have the right to direct the defense of such action on behalf of the
Indemnitee). In any such case, the reasonable fees, disbursements and other
charges of counsel will be at the expense of the Indemnitor; it being understood
that in no event shall the Companies be liable for the fees, disbursements and
other charges of more than two counsel (in addition to any local counsel) for
all Indemnitees in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. An Indemnitor shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, which shall not be unreasonably withheld, but if settled with the
written consent of an Indemnitor or if there shall be a final judgment for the
plaintiff in any such action, suit or proceeding, such Indemnitor agrees to
indemnify and hold harmless any Indemnitee to the extent set forth in this
letter from and against any loss, claim, damage, liability or expense by reason
of
-15-
such settlement or judgement. Notwithstanding the immediately preceding
sentence, if in any case where the fees and expenses of counsel are at the
expense of an Indemnitor and an Indemnitee shall have requested such Indemnitor
to reimburse such Indemnitee for such fees and expenses of counsel as incurred,
such Indemnitor agrees that it shall be liable for any settlement of any action
effected without its written consent if (i) such settlement is entered into more
than ten business days after the receipt by such Indemnitor of the aforesaid
request and (ii) such Indemnitor shall have failed to reimburse the Indemnitee
in accordance with such request for reimbursement prior to the date of such
settlement. No Indemnitor shall, without the prior written consent of an
Indemnitee, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder, if such settlement, compromise or
consent includes an admission of culpability or wrong-doing on the part of such
Indemnitee or the entry or an order, injunction or other equitable or
nonmonetary relief (including any administrative or other sanctions or
disqualifications) against such Indemnitee or if such settlement, compromise or
consent does not includes an unconditional release of such Indemnitee from all
liability arising out of such claim, action, suit or proceeding.
1. Subject to the limitations on liability set forth in Section 8.3 of the
Pooling and Servicing Agreement, the Servicer shall indemnify and hold harmless
each Indemnitee from and against any and all claims, damages, losses,
liabilities, costs or expenses whatsoever which such Indemnitee may incur (or
which may be claimed against such Indemnitee) by reason of any acts or omissions
or alleged acts or omissions of the Servicer hereunder or with respect to
activities of the Trust or the Trustee for which the Servicer is responsible
under the Pooling and Servicing Agreement or hereunder, subject, with respect to
the obligations of the Servicer in respect of activities of the Trust or the
Trustee for which the Servicer is responsible under the Pooling and Servicing
Agreement, to the provisos set forth in Section 8.4 of the Pooling and Servicing
Agreement. Subject to Section 9.5, any Successor Servicer, by accepting its
appointment pursuant to the Pooling and Servicing Agreement, (i) shall agree to
be bound by the terms, covenants and conditions contained herein applicable to
the Servicer and to be subject to the duties and obligations of the Servicer
hereunder, (ii) as of the date of its acceptance, shall be deemed to have made
with respect to itself the representations and warranties made by the SRI in
subsections 4.2(a) through (f) (in the case of subsection 4.2(a), with
appropriate factual changes) and (iii) shall agree to indemnify and hold
harmless any Indemnitee from and against any and all claims, damages, losses,
liabilities, costs or expenses (including reasonable fees and expenses of
counsel) whatsoever which any such Indemnitee may incur (or which may be claimed
against such Indemnitee) by reason of any acts or omissions or alleged acts or
omissions of the Servicer hereunder or with respect to activities of the Trust
or the Trustee for which the Servicer is responsible under the Pooling and
Servicing Agreement or hereunder.
1. Subject to the subsection 9.11(a) hereof in the case of the Transferor, the
obligations of SRPC, SRI, the Transferor and the Servicer under this Agreement
shall be absolute, unconditional and irrevocable and shall be performed strictly
in accordance with the terms of this Agreement. Without limiting the foregoing,
-16-
neither the lack of validity or enforceability of, or any modification to, any
Related Document nor the existence of any claim, setoff, defense or other right
which SRPC, SRI, the Trust, the Trustee, on behalf of the Trust, the Transferor
and the Servicer may have at any time against each other, the Class B-2 Agent,
the Facility Agent, any Class B-2 Purchaser or any other Person, whether in
connection with any Related Document or any unrelated transactions, shall
constitute a defense to such obligations.
I. SECTION CONDITIONS PRECEDENT
A. CONDITION TO EFFECTIVENESS. The following shall be
conditions precedent to the effectiveness of the Commitment of each Class B-2
Purchaser hereunder:
1. the representations and warranties of SRPC and SRI set forth or referred to
in Section 4.1 and 4.2 hereof shall be true and correct in all material respects
on the Closing Date as though made on and as of the Closing Date, and no event
which of itself or with the giving of notice or lapse of time, or both, would
constitute a Termination Event shall have occurred and be continuing on the
Closing Date;
2. the Restated Supplement shall have been duly executed and delivered by all
parties thereto and shall be in form and substance satisfactory to the Class B-2
Purchasers;
1. the Master Pooling and Servicing Agreement, the Receivables Purchase
Agreement and the Receivables Transfer Agreement shall not have been amended or
otherwise modified, other than as disclosed to the Class B-2 Purchasers in
writing prior to the Closing Date;
1. the sum of the Class B Invested Amount and the Class C Invested Amount shall
be at least equal to 25% of the Invested Amount, and the Class C Invested Amount
shall be at least equal to the higher of 17.5% of the Invested Amount and 5% of
the highest Invested Amount during the immediately preceding 180 days;
1. [reserved];
1. arrangements satisfactory to the initial Class B-2 Purchasers and the Class
B-2 Agent shall have been made for the payment of amounts required to be paid by
SRPC pursuant to Section 2.3(b) with respect to the preparation, execution,
delivery and initial syndication of this Agreement and the other documents to be
delivered hereunder or in connection herewith;
1. [reserved]; and
1. the Class B-2 Agent on behalf of the Class B-2 Purchasers shall have received
on the Closing Date the following items, each of which shall be in form and
substance satisfactory to the Class B-2 Agent:
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a) an Officer's Certificate of SRPC or SRI, as applicable,
confirming the satisfaction of the conditions set forth in clause (a), (c)
and (d), above;
a) a copy of (A) the certificates of incorporation and by-laws of, and an
incumbency certificate with respect to its officers executing any of the Related
Documents on the Closing Date on behalf of, part of SRPC and SRI certified by
its authorized officer, (B) good standing certificates from the appropriate
Governmental Authority as of a recent date with respect to each of SRPC and SRI
and (C) resolutions of the Board of Directors (or an authorized committee
thereof) of each of SRPC and SRI with respect to the Related Documents to which
it is party, certified by its authorized officer;
a) the favorable written opinions of counsel for SRPC and SRI addressed to the
Class B-2 Agent, the Facility Agent and the Class B-2 Purchasers, or accompanied
by a letter providing that the Class B-2 Agent, the Facility Agent and the Class
B-2 Purchasers may rely on such opinions as if they were addressed to them, and
dated the Closing Date, covering general corporate matters, the due execution
and delivery of, and the enforceability of, each of the Related Documents to
which SRPC or SRI (individually or as Transferor or Servicer) is party,
sale/security interest matters, tax matters and such other matters as the Class
B-2 Agent may request;
a) [reserved];
a) evidence of the due execution and delivery by the Trustee
of the Related Documents to which it is party;
a) an executed copy of the Restated Supplement and a
conformed copy of the Master Pooling and Servicing Agreement, the Receivables
Purchase Agreement and the Receivables Transfer Agreement;
a) executed copies of all opinions required by Article VI of the Pooling and
Servicing Agreement or by any Rating Agency in connection with the issuance or
sale of the Class B-2 Certificates or the amendments to the Supplement contained
in the Restated Supplement (each such opinion, unless otherwise agreed to by the
Class B-2 Agent, to be addressed to the Class B-2 Agent on behalf of the Class
B-2 Purchasers and the Facility Agent or accompanied by a letter providing that
the Class B-2 Agent on behalf of the Class B-2 Purchasers and the Facility Agent
may rely on such opinion as if it were addressed to it), and such additional
documents, instruments, certificates or letters as the Class B-2 Agent may
reasonably request; and
a) the duly executed Class B-2 Certificate(s) registered in
the name of the Class B-2 Agent as nominee on behalf of the Class B-2 Owners.
A. CONDITION TO ADDITIONAL PURCHASES. The following shall
be conditions precedent to each purchase by any Class B-2 Purchasers of
Additional Class B-2 Invested Amounts hereunder:
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1. the Transferor shall have timely delivered a notice of
purchase pursuant to subsection 2.1(c) of this Agreement;
1. the representations and warranties of SRPC and SRI set forth or referred to
in Section 4.1 and 4.2 hereof shall be true and correct in all material respects
on the date of such purchase as though made on and as of such date; no event
which of itself or with the giving of notice or lapse of time, or both, would
constitute a Termination Event shall have occurred and be continuing on such
date, and there shall exist no unreimbursed Class C Investor Charge-Offs;
1. after giving effect to such purchase of Additional Class B-2 Invested Amount,
the aggregate Class B-2 Principal Balance shall not exceed the lesser of the
aggregate Commitments of the Class B-2 Purchasers or the Class B-2 Purchase
Limit;
(d) after giving effect to such purchase,(i) the Class B-2 Invested
Amount will be equal to or less than the lower of the Class B-2 Purchase Limit
and 10% of the Invested Amount, (ii) the sum of the Class B Invested Amount,
Class B-2 Invested Amount and the Class C Invested Amount shall be at least
equal to 25% of the Invested Amount, and (iii) the sum of the Class B-2 Invested
Amount and the Class C Invested Amount shall be at least equal to the higher of
17.5% of the Invested Amount and 5% of the highest Invested Amount during the
immediately preceding 180 days, and (iv) the Class C Invested Amount shall be at
least equal to 7.5% of the Invested Amount;
(e) after giving effect to such purchase and the application of the
proceeds thereof as provided herein and in subsection 4.2(h) of the Pooling and
Servicing Agreement, the amount on deposit in the Spread Account, expressed as a
percentage of the Invested Amount, after giving effect to such purchase and the
application of the proceeds thereof as provided herein as in subsection 4.2(h)
of the Pooling and Servicing Agreement, shall be not less than such percentage
determined prior to giving effect to such purchase and application;
(f) the applicable Utilization Fee (if any) specified in the Class A
Fee Letter shall have been paid by the Transferor to the Class B-2 Agent for the
account of the Class B-2 Purchasers; and
(g) the conditions set forth in Section 6.15 of the Pooling and
Servicing Agreement to the issuance of such Additional Class B-2 Invested Amount
shall have been satisfied.
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I. SECTION REPRESENTATIONS AND WARRANTIES
A. REPRESENTATIONS AND WARRANTIES OF SRPC. SRPC repeats and reaffirms to the
Class B-2 Purchasers and the Class B-2 Agent the representations and warranties
of the Transferor set forth in Sections 2.3 of the Pooling and Servicing
Agreement, and represents and warrants that such representations and warranties
are true and correct as of the date hereof. SRPC further represents and warrants
to, and agrees with, the Class B-2 Agent and each Class B-2 Purchaser that, as
of the date hereof:
1. SRPC is a duly organized and validly existing corporation in good standing
under the laws of the State of Delaware, with corporate power and authority to
own its properties and to transact the business in which it is now engaged. SRPC
is duly qualified to do business (or is exempt from such qualification) and is
in good standing in each State of the United States where the nature of its
business requires it to be so qualified.
1. SRPC has the full corporate power, authority and legal right to make,
execute, deliver and perform the Related Documents to which it is party
(individually or as Transferor) and all of the transactions contemplated thereby
and to issue the Series 1997-1 Certificates from the Trust and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Related Documents to which it is party and such issuance. Each of the
Related Documents to which SRPC is party (individually or as Transferor)
constitutes its legal, valid and binding agreement enforceable in accordance
with its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of the rights of
creditors generally and except as such enforceability may be limited by general
principles of equity, whether considered in a proceeding at law or in equity).
1. SRPC is not required to obtain the consent of any other party or any consent,
license, approval or authorization of, or registration with, any Governmental
Authority in connection with the execution, delivery or performance of each of
the Related Documents to which it is party (individually or as Transferor) that
has not been duly obtained and which is not and will not be in full force and
effect on the Closing Date.
2. SRPC's execution, delivery and performance of the Related Documents to which
it is party (individually or as Transferor) do not violate or conflict with any
provision of any existing law or regulation applicable to SRPC or any order or
decree of any court to which SRPC is subject or the Certificate of Incorporation
or Bylaws of SRPC, or any mortgage, security agreement, indenture, contract or
other agreement to which SRPC is a party or by which SRPC or any significant
portion of its properties is bound.
1. There is no litigation, investigation or administrative proceeding before any
court, tribunal, regulatory body or governmental body presently pending, or, to
the knowledge of SRPC, threatened, with respect to any of the Related
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Documents, the transactions contemplated thereby, or the issuance of the Series
1997-1 Certificates and there is no such litigation or proceeding against SRPC
or any significant portion of its properties which would, individually or in the
aggregate, have a material adverse effect on the transactions contemplated by
any of the Related Documents or the ability of SRPC to perform its obligations
thereunder.
1. SRPC is not insolvent or the subject of any insolvency or liquidation
proceeding. The financial statements of SRPC delivered to the Class B-2 Agent
are complete and correct in all material respects and fairly present the
financial condition of SRPC as of date of such statements and the results of
operations of SRPC for the period then ended, all in accordance with United
States generally accepted accounting principles consistently applied. Since the
date of the most recent audited financial statements of SRPC delivered to the
Class B-2 Agent, there has not been any material adverse change in the condition
(financial or otherwise) of SRPC.
1. There are no outstanding comments from the most recent report prepared by the
independent public accountants for SRPC (individually or in its capacity as
Transferor) in connection with its credit card receivables.
1. No Trust Pay Out Event, Series 1997-1 Pay Out Event, Servicer Default or
Termination Event has occurred and is continuing, and no event, act or omission
has occurred and is continuing which, with the lapse of time, the giving of
notice, or both, would constitute such an event or default.
1. The Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and neither the Trust nor SRPC is
required to be registered under the Investment Company Act of 1940, as amended.
1. The Receivables conveyed by SRPC to the Trust under the Pooling and Servicing
Agreement are in an aggregate amount, determined as of October 9, 1998, of
$308,790,012.76, consisting of $297,153,016.48 of Principal Receivables and
$11,636,996.28 of Finance Charge Receivables. The Receivables Purchase Agreement
is in full force and effect on the date hereof and no material default by any
party exists thereunder.
1. The Trust is duly created and existing under the laws of the State of New
York. Simultaneous with the closing hereunder, all conditions to the issuance
and sale of the Class B-2 Certificates set forth in the Pooling and Servicing
Agreement have been satisfied and the Class B-2 Certificates have been duly
issued by the Trust.
1. Neither SRPC nor any of its Affiliates has directly, or through any agent,
(i) sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any "security" (as defined in the Securities Act) that is or will be
integrated with the sale of the any Series 1997-1 Certificates in a manner that
would
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require the registration under the Securities Act of the offering of the Series
1997-1 Certificates or (ii) engaged in any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) in connection with the offering of the Series 1997-1
Certificates or in any manner involving a public offering thereof within the
meaning of Section 4(2) of the Securities Act. Assuming the accuracy of the
representations and warranties of each Class B-2 Purchaser in its Investment
Letter and of each purchaser of Class A Certificates and Class B Certificates in
their respective investment letters, the offer and sale of the Series 1997-1
Certificates are transactions which are exempt from the registration
requirements of the Securities Act.
1. All written factual information heretofore furnished by SRPC to, or for
delivery to, the Class B-2 Agent for purposes of or in connection with this
Agreement, including information relating to the Accounts, the Receivables, and
SRI's credit card business, was true and correct in all material respects on the
date as of which such information was stated or certified and remains true and
correct in all material respects (unless such information specifically relates
to an earlier date in which case such information shall have been true and
correct in all material respects on such earlier date).
A. REPRESENTATIONS AND WARRANTIES OF SRI. SRI repeats and reaffirms to the Class
B-2 Purchasers and the Class B-2 Agent the representations and warranties of the
Servicer set forth in Sections 3.3 of the Pooling and Servicing Agreement, and
represents and warrants that such representations and warranties are true and
correct as of the date hereof. SRI further represents and warrants to, and agree
with, the Class B-2 Agent and each Class B-2 Purchaser that, as of the date
hereof:
1. SRI is a duly organized and validly existing corporation in good standing
under the laws of the State of Texas, with corporate power and authority to own
its properties and to transact the business in which it is now engaged. SRI is
duly qualified to do business (or is exempt from such qualification) and is in
good standing in each State of the United States where the nature of its
business requires it to be so qualified.
1. SRI has the full corporate power, authority and legal right to make, execute,
deliver and perform the Related Documents to which it is party (individually or
as Servicer) and all of the transactions contemplated thereby and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Related Documents to which it is party and such issuance. Each of the
Related Documents to which SRI is party (individually or as Servicer)
constitutes its legal, valid and binding agreement enforceable in accordance
with its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of the rights of
creditors of national banking associations generally and except as such
enforceability may be limited by general principles of equity, whether
considered in a proceeding at law or in equity).
1. SRI is not required to obtain the consent of any other party or any consent,
license, approval or authorization of, or registration with, any
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Governmental Authority in connection with the execution, delivery or performance
of each of the Related Documents to which it is party (individually or as
Servicer) that has not been duly obtained and which is not and will not be in
full force and effect on the Closing Date.
1. The execution, delivery and performance by SRI of the Related Documents to
which it is party (individually or as Servicer) do not violate or conflict with
any provision of any existing law or regulation applicable to SRI or any order
or decree of any court to which SRI is subject or the Certificate of
Incorporation or Bylaws of SRI, or any mortgage, security agreement, indenture,
contract or other agreement to which SRI is a party or by which SRI or any
significant portion of its properties is bound.
1. There is no litigation, investigation or administrative proceeding before any
court, tribunal, regulatory body or governmental body presently pending, or, to
the knowledge of SRI, threatened, with respect to any of the Related Documents,
the transactions contemplated thereby, or the issuance of the Series 1997-1
Certificates, and there is no such litigation or proceeding against SRI or any
significant portion of its properties which would, individually or in the
aggregate, have a material adverse effect on the transactions contemplated by
any of the Related Documents or the ability of SRI to perform its obligations
thereunder.
1. SRI is not insolvent or the subject of any insolvency or liquidation
proceeding. The financial statements of SRI delivered to the Class B-2 Agent are
complete and correct in all material respects and fairly present the financial
condition of SRI as of date of such statements and its results of operations for
the period then ended, all in accordance with United States generally accepted
accounting principles consistently applied. Since the date of the most recent
audited financial statements of SRI delivered to the Class B-2 Agent through the
Closing Date, there has not been any material adverse change in the condition
(financial or otherwise) of SRI.
1. There are no outstanding comments from the most recent report prepared by the
independent public accountants for SRI (individually or in its capacity as
Servicer) in connection with its credit card receivables.
1. No Trust Pay Out Event, Series 1997-1 Pay Out Event, Servicer Default,
Termination Event has occurred and is continuing, and no event, act or omission
has occurred and is continuing which, with the lapse of time, the giving of
notice, or both, would constitute such an event or default.
1. The Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and neither the Trust, SRPC nor SRI is
required to be registered under the Investment Company Act of 1940, as amended.
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1. The Receivables Purchase Agreement is in full force and effect on the date
hereof and no material default by any party exists thereunder.
1. The Trust is duly created and existing under the laws of the State of New
York. Simultaneous with the closing hereunder, all conditions to the issuance
and sale of the Series 1997-1 Certificates set forth in the Pooling and
Servicing Agreement have been satisfied and the Series 1997-1 Certificates have
been duly issued by the Trust.
1. To the knowledge of SRI, the representations and warranties of SRPC set forth
in Section 4.1 above are true and correct in all material respects.
1. The representations and warranties of Granite set forth in Section 4.02 and
4.03 of the Receivables Transfer Agreement are true and correct in all material
respects.
1. All written factual information heretofore furnished by SRPC, SRI, Granite or
Stage to, or for delivery to, the Class B-2 Agent for purposes of or in
connection with this Agreement, including information relating to the Accounts,
the Receivables and the credit card business of SRPC, SRI or Granite, was true
and correct in all material respects on the date as of which such information
was stated or certified and remains true and correct in all material respects
(unless such information specifically relates to an earlier date in which case
such information shall have been true and correct in all material respects on
such earlier date).
A. REPRESENTATIONS AND WARRANTIES OF THE CLASS B-2 AGENT, THE FACILITY AGENT AND
THE CLASS B-2 PURCHASERS. Each of the Class B-2 Agent, the Facility Agent and
the Class B-2 Purchasers severally (each with respect to itself only) represents
and warrants to, and agrees with, the Transferor and the Servicer, that:
1. It is duly authorized to enter into and perform this Agreement and, in the
case of the Class B-2 Purchasers, to purchase its Commitment Percentage (if any)
of the Class B-2 Certificates, and has duly executed and delivered this
Agreement; and the person signing this Agreement on behalf of the Class B-2
Agent, the Facility Agent or such Class B-2 Purchaser, as the case may be, has
been duly authorized to do so.
1. This Agreement constitutes the legal, valid and binding obligation of the
Class B-2 Agent, the Facility Agent or such Class B-2 Purchaser, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, conservatorship
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general, and except as such enforceability may be limited
by general principles of equity (whether considered in a proceeding at law or in
equity).
-24-
1. No registration with or consent or approval of or other action by any state
or local governmental authority or regulatory body having jurisdiction over the
Class B-2 Agent, the Facility Agent or such Class B-2 Purchaser is required in
connection with its execution, delivery or performance of this Agreement, other
than as may be required under the blue sky laws of any state.
1. The execution, delivery or performance by the Class B-2 Agent, the Facility
Agent or such Class B-2 Purchaser of this Agreement do not violate or conflict
with any provision of any existing law or regulation applicable to it or any
order or decree of any court to which it is subject, its charter or bylaws, or
any mortgage, security agreement, indenture, contract or other agreement to
which such it is a party or by which it or any significant portion of its
properties is bound, in any such case if such violation or conflict would have
an adverse affect on its right or ability to execute, deliver or perform its
obligations under this Agreement.
I. SECTION COVENANTS
A. COVENANTS OF SRPC. SRPC (individually or, as set forth below, as the
Transferor) and SRI (individually and, as set forth below, as the Servicer),
each as to itself in such capacity or capacities, and subject to subsection
9.11(a) in the case of the Transferor, covenants and agrees, through the
Termination Date for all Class B-2 Purchasers and thereafter so long as any
amount of the Class B-2 Principal Balance shall remain outstanding or any
monetary obligation arising hereunder shall remain unpaid, unless the Required
Class B-2 Purchasers shall otherwise consent in writing, that:
1. each of SRPC, SRI, the Transferor and the Servicer shall perform in all
material respects each of the respective agreements, warranties and indemnities
applicable to it and comply in all material respects with each of the respective
terms and provisions applicable to it under the other Related Documents to which
it is party, which agreements, warranties and indemnities are hereby
incorporated by reference into this Agreement as if set forth herein in full;
and each of SRPC, SRI, the Transferor and the Servicer shall take all reasonable
action to enforce the obligations of each of the other parties to such Related
Documents which are contained therein;
a) the Transferor and the Servicer shall furnish to the Class B-2 Agent a copy
of each opinion, certificate, report, statement, notice or other communication
(other than investment instructions) relating to the Series 1997-1 Certificates
which is furnished by or on behalf of either of them to Certificateholders, to
any Rating Agency or to the Trustee and furnish to the Class B-2 Agent after
receipt thereof, a copy of each notice, demand or other communication relating
to the Series 1997-1 Certificates, this Agreement or the Pooling and Servicing
Agreement received by the Transferor or the Servicer from the Trustee, any
Rating Agency or 10% or more of the Series 1997-1 Certificateholders (to the
extent such notice, demand or communication relates to the Accounts, the
Receivables, any Servicer Default, any Trust Pay Out Event or any Series 1997-1
Pay Out Event); and (ii) such other information, documents records or reports
respecting the Trust, the Accounts, the Receivables, the Transferor or the
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Servicer as the Class B-2 Agent may from time to time reasonably request without
unreasonable expense to the Transferor or the Servicer;
1. the Servicer shall furnish to the Class B-2 Agent on or before the date such
reports are due under the Pooling and Servicing Agreement copies of each of the
reports and certificates required by subsection 3.4(c) or Section 3.5 or 3.6 of
the Pooling and Servicing Agreement;
1. the Servicer shall promptly furnish to the Class B-2 Agent a copy, addressed
to the Class B-2 Agent, of each opinion of counsel delivered to the Trustee
pursuant to subsection 13.2(d) of the Pooling and Servicing Agreement;
1. SRI shall furnish to the Class B-2 Agent (i) promptly when publicly
available, the annual (audited) and quarterly (unaudited) consolidated and
consolidating financial statements of each of Stage and SRPC, the publicly
available portions of Granite's quarterly and annual consolidated reports of
condition and income and such other publicly available financial information, if
any, as to Stage, SRI, Granite or SRPC as the Class B-2 Agent may request, and
(ii) promptly after known to SRI, information with respect to any action, suit
or proceeding involving SRI or any of its Affiliates by or before any court or
any Governmental Authority which, if adversely determined, would materially
adversely affect the business, results of operation or financial condition of
SRPC, SRI or Granite;
1. the Servicer shall furnish to the Class B-2 Agent a certificate concurrently
with its delivery of its annual certificate pursuant to Section 3.5 of the
Pooling and Servicing Agreement stating that no Termination Event or event or
condition which with the passage of time or the giving of notice, or both, would
constitute a Termination Event has occurred or, if such a Termination Event,
event or condition has occurred, identifying the same in reasonable detail;
1. the Transferor shall not exercise its right to accept optional reassignment
of the Receivables or repurchase the Series 1997-1 Certificates pursuant to
Section 12.2 of the Pooling and Servicing Agreement, unless the Class B-2
Purchasers and the Class B-2 Agent have been paid, or will be paid upon such
repurchase or in connection with such optional reassignment, the Class B-2
Principal Balance, all interest thereon and all other amounts owing hereunder in
full;
1. the Transferor and the Servicer shall at any time from time to time during
regular business hours, on reasonable notice to the Transferor or the Servicer,
as the case may be, permit the Class B-2 Agent, or its agents or representatives
to:
a) examine all books, records and documents (including
computer tapes and disks) in its possession or under its control relating to
the Receivables, and
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a) visit its offices and property for the purpose of
examining such materials described in clause (i) above.
The information obtained by the Class B-2 Agent or any Class B-2 Purchaser
pursuant to this subsection shall be held in confidence in accordance with
Section 6.2 hereof;
1. the Transferor and the Servicer shall use reasonable efforts to cooperate
with the Class B-2 Agent (including affording reasonable inspection rights,
assisting in the preparation of syndication material, attending investor
meetings and providing access to its officers) in its effort to syndicate the
Commitments;
1. the Servicer shall furnish to the Class B-2 Agent, promptly after the
occurrence of any Servicer Default, Termination Event, Trust Pay Out Event or
Series 1997-1 Pay Out Event, a certificate of an appropriate officer of the
Servicer setting forth the circumstances of such Servicer Default, Termination
Event, Trust Pay Out Event or Series 1997-1 Pay Out Event and any action taken
or proposed to be taken by the Servicer or the Transferor with respect thereto;
1. the Transferor and the Servicer shall timely make all payments, deposits or
transfers and give all instructions to transfer required by this Agreement, the
Pooling and Servicing Agreement, the Receivables Purchase Agreement and the
Receivables Transfer Agreement;
1. neither Transferor, the Servicer nor the Originator shall terminate (except
in accordance with the terms thereof), amend, waive or otherwise modify the
Master Pooling and Servicing Agreement or the Supplement, unless (i) such
amendment, waiver or modification shall not, as evidenced by an Officer's
Certificate of the Transferor delivered to the Class B-2 Agent, adversely affect
in any material respect the interests of the Class B-2 Agent, the Facility Agent
or the Class B-2 Purchasers under any Related Document; and (ii) all of the
applicable provisions of Section 13.1 of the Pooling and Servicing Agreement
have been complied with;
1. the Transferor and the Servicer shall execute and deliver to the Class B-2
Agent, the Facility Agent or the Trustee all such documents and instruments and
do all such other acts and things as may be necessary or reasonably required by
the Class B-2 Agent, the Facility Agent or the Trustee to enable any of them to
exercise and enforce their respective rights under the Related Documents and to
realize thereon, and record and file and rerecord and refile all such documents
and instruments, at such time or times, in such manner and at such place or
places, all as may be necessary or required by the Trustee, the Facility Agent
or the Class B-2 Agent to validate, preserve, perfect and protect the position
of the Trustee under the Pooling and Servicing Agreement;
1. neither the Transferor nor the Servicer will consolidate with or merge into
any other Person or convey or transfer its properties and assets substantially
as an entirety to any Person, except (i) in accordance with Section 7.2 or 8.2
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of the Pooling and Servicing Agreement, and (ii) with the prior written consent
of the Required Class B-2 Purchasers; PROVIDED that such consent shall not be
required in the case of the Servicer if, after giving effect to such
consolidation, merger, conveyance or transfer, the Class B Certificates are
rated at least "BBB" by Standard & Poor's or at least "Baa3" by Xxxxx'x
Investors Services, Inc.;
1. SRI will not (i) resign as Servicer, unless (A) the performance of its duties
under the Pooling and Servicing Agreement is no longer permissible pursuant to
Requirements of Law and there is no reasonable action which it could take to
make the performance of such duties permissible under such Requirements of Law,
or (B) the Required Class B-2 Purchasers shall have consented thereto, or (ii)
assign the Pooling and Servicing Agreement (unless such assignment is permitted
pursuant to Section 8.2 of the Pooling and Servicing Agreement and subsection
5.1(n) hereof), (iii) delegate any of its material duties under the Pooling and
Servicing Agreement except as permitted by Section 8.7 of the Pooling and
Servicing Agreement and unless the Person to which such delegation is made is a
wholly owned subsidiary (directly or indirectly) of Stage, is legally qualified
and licensed (to the extent required) to perform the duties delegated to it,
owns or holds under valid leases or (in the case of software) licenses all
computer equipment and software and other equipment and rights which are
required for such Person to perform such duties, and employs sufficient and
adequately trained personnel to perform such duties, or (iv) appoint or permit
the appointment of a Successor Servicer other than the Trustee under the
provisions of the Pooling and Servicing Agreement without consultation with the
Facility Agent; and
1. the Transferor will not incur, permit or suffer to exist any lien, charge or
other adverse claim on any Class C Certificate.
I. SECTION MUTUAL COVENANTS REGARDING CONFIDENTIALITY
A. COVENANTS OF SRPC, ETC. SRPC, SRI, the Transferor and the Servicer shall hold
in confidence, and not disclose to any Person, the terms of any fees payable in
connection with this Agreement except they may disclose such information (i) to
their officers, directors, employees, agents, counsel, accountants, auditors,
advisors or representatives, (ii) with the consent of the Required Class B-2
Purchasers and Class B-2 Agent, or (iii) to the extent SRPC, SRI, Granite, the
Transferor or the Servicer or any Affiliate of either of them should be required
by any law or regulation applicable to it or requested by any Governmental
Authority to disclose such information; PROVIDED, that, in the case of clause
(iii), SRPC, the Transferor, SRI, Granite or the Servicer, as the case may be,
will use all reasonable efforts to maintain confidentiality and will (unless
otherwise prohibited by law) notify the Class B-2 Agent of its intention to make
any such disclosure prior to making such disclosure.
A. COVENANTS OF CLASS B-2 PURCHASERS. The Class B-2 Agent, the Facility Agent
and each Class B-2 Purchaser, severally and with respect to itself only,
covenants and agrees that any information obtained by the Class B-2 Agent, the
Facility
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Agent or such Class B-2 Purchaser pursuant to this Agreement shall be held in
confidence (it being understood that documents provided to the Class B-2 Agent
hereunder may in all cases be distributed by the Class B-2 Agent or the Facility
Agent to the Class B-2 Purchasers) except that the Class B-2 Agent, the Facility
Agent or such Class B-2 Purchaser may disclose such information (i) to its
officers, directors, employees, agents, counsel, accountants, auditors, advisors
or representatives, (ii) to the extent such information has become available to
the public other than as a result of a disclosure by or through the Class B-2
Agent, the Facility Agent or such Class B-2 Purchaser, (iii) to the extent such
information was available to the Class B-2 Agent, the Facility Agent or such
Class B-2 Purchaser on a nonconfidential basis prior to its disclosure to the
Class B-2 Agent, the Facility Agent or such Class B-2 Purchaser hereunder, (iv)
with the consent of the Transferor, (v) to the extent permitted by Section 8.1,
or (vi) to the extent the Class B-2 Agent, the Facility Agent or such Class B-2
Purchaser should be (A) required in connection with any legal or regulatory
proceeding or (B) requested by any Governmental Authority to disclose such
information; PROVIDED, that, in the case of clause (vi) above, the Class B-2
Agent, the Facility Agent or such Class B-2 Purchaser, as applicable, will use
all reasonable efforts to maintain confidentiality and, in the case of clause
(vi)(A) above, will (unless otherwise prohibited by law) notify the Transferor
of its intention to make any such disclosure prior to making any such
disclosure.
I. SECTION THE AGENTS
A. APPOINTMENT. (a) Each Class B-2 Purchaser hereby irrevocably designates and
appoints the Class B-2 Agent as the agent of such Class B-2 Purchaser under this
Agreement, and each such Class B-2 Purchaser irrevocably authorizes the Class
B-2 Agent, as the agent for such Class B-2 Purchaser, to take such action on its
behalf under the provisions of the Related Documents and to exercise such powers
and perform such duties thereunder as are expressly delegated to the Class B-2
Agent by the terms of the Related Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Class B-2 Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Class B-2 Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Class B-2 Agent.
(b) Each Class B-2 Purchaser hereby irrevocably designates and
appoints the Facility Agent as the agent of such Class B-2 Purchaser under the
Pooling and Servicing Agreement, and each such Class B-2 Purchaser irrevocably
authorizes the Facility Agent, as the agent for such Class B-2 Purchaser, to
take such action on its behalf under the provisions of the Pooling and Servicing
Agreement and to exercise such powers and perform such duties thereunder as are
expressly granted to the Facility Agent by the terms of the Pooling and
Servicing Agreement, subject to the terms and conditions of this Agreement,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Facility Agent shall not have any duties or responsibilities, except those
expressly set forth herein or in the Pooling and Servicing Agreement, or any
fiduciary relationship with any
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Class B-2 Purchaser, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Facility Agent.
A. DELEGATION OF DUTIES. The Class B-2 Agent and the Facility Agent may execute
any of its duties under any of the Related Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither the Class B-2 Agent nor the Facility
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
A. EXCULPATORY PROVISIONS. Neither the Class B-2 Agent nor the Facility Agent
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable to any of the Class B-2
Purchasers for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with any of the other Related Documents (except
for its or such Person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Class B-2 Purchasers for any recitals,
statements, representations or warranties made by SRPC, SRI, Granite, Stage, the
Transferor, the Servicer or the Trustee or any officer thereof contained in any
of the other Related Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Class B-2 Agent or
the Facility Agent under or in connection with, any of the other Related
Documents or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any of the other Related Documents or for
any failure of SRPC, SRI, Granite, Stage, the Transferor, the Servicer or the
Trustee to perform its obligations thereunder. Neither the Class B-2 Agent nor
the Facility Agent shall be under any obligation to any Class B-2 Purchaser to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, any of the other Related Documents,
or to inspect the properties, books or records of SRPC, SRI, Stage, the
Transferor, the Servicer, the Trustee or the Trust.
A. RELIANCE BY AGENT. The Class B-2 Agent and the Facility Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, written statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Class B-2 Agent or the
Facility Agent), independent accountants and other experts selected by the Class
B-2 Agent or the Facility Agent. The Class B-2 Agent and the Facility Agent
shall be fully justified in failing or refusing to take any action under any of
the Related Documents unless it shall first receive such advice or concurrence
of the Required Class B-2 Purchasers as it deems appropriate or it shall first
be indemnified to its satisfaction by the Class B-2 Purchasers or by the Class
B-2 Purchasers against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The Class B-2
Agent and the Facility Agent shall in all cases be fully protected in acting, or
in refraining from acting, under any of the
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Related Documents in accordance with a request of the Required Class B-2
Purchasers and such request and any action taken or failure to act pursuant
thereto shall be binding upon all present and future Class B-2 Purchasers.
A. NOTICES. The Class B-2 Agent shall not be deemed to have knowledge or notice
of the occurrence of any breach of this Agreement or the occurrence of any Pay
Out Event or any Termination Event unless the Class B-2 Agent has received
notice from the Transferor, the Servicer, the Trustee or any Class B-2 Purchaser
referring to this Agreement, describing such event. In the event that the Class
B-2 Agent receives such a notice, the Class B-2 Agent promptly shall give notice
thereof to the Class B-2 Purchasers. The Class B-2 Agent shall take such action
with respect to such event as shall be reasonably directed by the Required Class
B-2 Purchasers; PROVIDED that unless and until the Class B-2 Agent shall have
received such directions, the Class B-2 Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
event as it shall deem advisable in the best interests of the Class B-2
Purchasers.
A. NON-RELIANCE ON AGENT AND OTHER CLASS B-2 PURCHASERS. Each Class B-2
Purchaser expressly acknowledges that neither the Class B-2 Agent nor the
Facility Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Class B-2 Agent or the Facility Agent
hereafter taken, including any review of the affairs of SRPC, SRI, Granite,
Stage, the Transferor, the Servicer, the Trustee or the Trust shall be deemed to
constitute any representation or warranty by the Class B-2 Agent or the Facility
Agent to any Class B-2 Purchaser. Each Class B-2 Purchaser represents to the
Class B-2 Agent and the Facility Agent that it has, independently and without
reliance upon the Class B-2 Agent, the Facility Agent or any other Class B-2
Purchaser, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Trust, the Trustee, SRPC, SRI, Granite, Stage, the Transferor and the Servicer
and made its own decision to purchase its interest in the Class B-2 Certificates
hereunder and enter into this Agreement. Each Class B-2 Purchaser also
represents that it will, independently and without reliance upon the Class B-2
Agent or the Facility Agent or any other Class B-2 Purchaser, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis, appraisals and decisions in taking or not taking action
under any of the Related Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Trust, the Trustee, SRPC, SRI,
Granite, Stage, the Transferor and the Servicer. Except, in the case of the
Class B-2 Agent, for notices, reports and other documents received by the Class
B-2 Agent under Section 5 hereof, neither the Class B-2 Agent nor the Facility
Agent shall have any duty or responsibility to provide any Class B-2 Purchaser
with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Trust, the Trustee, SRPC, SRI, Granite, Stage, the Transferor or the
Servicer which may come
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into the possession of the Class B-2 Agent or the Facility Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
A. INDEMNIFICATION. The Class B-2 Purchasers agree to indemnify the Class B-2
Agent and the Facility Agent in its capacity as such (without limiting the
obligation (if any) of SRPC, SRI, Granite, the Transferor, the Trust or the
Servicer to reimburse the Class B-2 Agent or the Facility Agent for any such
amounts), ratably according to their respective Commitment Percentages (or, if
the Commitments have terminated, Percentage Interests), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including at any time following the payment of the obligations under this
Agreement, including the Class B-2 Principal Balance) be imposed on, incurred by
or asserted against the Class B-2 Agent or the Facility Agent in any way
relating to or arising out of this Agreement, or any documents contemplated by
or referred to herein or the transactions contemplated hereby or any action
taken or omitted by the Class B-2 Agent or the Facility Agent under or in
connection with any of the foregoing; PROVIDED that no Class B-2 Purchaser shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of the Class B-2 Agent or the Facility Agent resulting from its
own gross negligence or willful misconduct. The agreements in this subsection
shall survive the payment of the obligations under this Agreement, including the
Class B-2 Principal Balance.
A. AGENTS IN THEIR INDIVIDUAL CAPACITIES. The Class B-2 Agent, the Facility
Agent and their Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Trust, the Trustee, SRPC, SRI, Granite,
Stage, the Servicer and the Transferor as though the Class B-2 Agent and the
Facility Agent were not the agents hereunder. Each Class B-2 Purchaser
acknowledges that Credit Suisse First Boston may act (i) as administrator and
agent for one or more purchasers under Related Documents and in such capacity
acts and may continue to act on behalf of each such purchaser in connection with
its business, (ii) as the agent for certain financial institutions under the
liquidity and credit enhancement agreements relating to certain Related
Documents to which any such purchaser is party and in various other capacities
relating to the business of any such purchasers under various agreements, and
(iii) as agent for other Classes of Series 1997-1 Certificates. Credit Suisse
First Boston in its capacity as the Class B-2 Agent or the Facility Agent shall
not, by virtue of its acting in any such other capacities, be deemed to have
duties or responsibilities hereunder or be held to a standard of care in
connection with the performance of its duties as the Class B-2 Agent or the
Facility Agent other than as expressly provided in this Agreement. Credit Suisse
First Boston may act as the Class B-2 Agent and the Facility Agent without
regard to and without additional duties or liabilities arising from its role as
such administrator or agent or arising from its acting in any such other
capacity.
A. SUCCESSOR AGENT. (a) The Class B-2 Agent may resign as Class B-2 Agent upon
ten days' notice to the Class B-2 Purchasers, the Trustee, the Transferor and
the Servicer with such resignation becoming effective upon a successor
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agent succeeding to the rights, powers and duties of the Class B-2 Agent
pursuant to this subsection 7.9(a). If the Class B-2 Agent shall resign as Class
B-2 Agent under this Agreement, then the Required Class B-2 Purchasers shall
appoint from among the Class B-2 Purchasers a successor agent for the Class B-2
Purchasers. The successor agent shall succeed to the rights, powers and duties
of the Class B-2 Agent, and the term "Class B-2 Agent" shall mean such successor
agent effective upon its appointment, and the former Class B-2 Agent's rights,
powers and duties as Class B-2 Agent shall be terminated, without any other or
further act or deed on the part of such former Class B-2 Agent or any of the
parties to this Agreement. After the retiring Class B-2 Agent's resignation as
Class B-2 Agent, the provisions of this Section 7 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Class B-2 Agent
under this Agreement.
(b) The Facility Agent may resign as Facility Agent upon ten days'
notice to the Class B-2 Purchasers, the Class A Purchasers (as defined in the
Class A Certificate Purchase Agreement), the Trustee, the Transferor and the
Servicer with such resignation becoming effective upon a successor agent
succeeding to the rights, powers and duties of the Facility Agent pursuant to
this subsection 7.9(b). If the Facility Agent shall resign as Facility Agent
under this Agreement, then the Required Class B-2 Purchasers shall appoint from
among the Committed Class A Purchasers under the Class A Certificate Purchase
Agreement or the Committed Class B Purchasers under the Class B Certificate
Purchase Agreement a successor Facility Agent of the Class B-2
Certificateholders, the Class B Certificateholders and the Class A
Certificateholders as provided in the Supplement; PROVIDED that no such
appointment shall be effective unless such successor is also appointed as
successor Facility Agent under the Class A Certificate Purchase Agreement and
the Class B Certificate Purchase Agreement. The successor agent shall succeed to
the rights, powers and duties of the Facility Agent, and the term "Facility
Agent" shall mean such successor agent effective upon its appointment, and the
former Facility Agent's rights, powers and duties as Facility Agent shall be
terminated, without any other or further act or deed on the part of such former
Facility Agent or any of the parties to this Agreement. After the retiring
Facility Agent's resignation as Facility Agent, the provisions of this Section 7
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Facility Agent under this Agreement.
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I. SECTION SECURITIES LAWS; TRANSFERS; TAX TREATMENT
1. TRANSFERS OF CLASS B-2 CERTIFICATES. Each Class B-2 Purchaser agrees that the
beneficial interest in the Class B-2 Certificates purchased by it will be
acquired for investment only and not with a view to any public distribution
thereof, and that such Class B-2 Purchaser will not offer to sell or otherwise
dispose of any Class B-2 Certificate acquired by it (or any interest therein) in
violation of any of the registration requirements of the Securities Act or any
applicable state or other securities laws. Each Class B-2 Purchaser acknowledges
that it has no right to require the Transferor to register, under the Securities
Act or any other securities law, the Class B-2 Certificates (or the beneficial
interest therein) acquired by it pursuant to this Agreement or any Transfer
Supplement. Each Class B-2 Purchaser hereby confirms and agrees that in
connection with any transfer or syndication by it of an interest in the Class
B-2 Certificates, such Class B-2 Purchaser has not engaged and will not engage
in a general solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper, magazine
or similar media or broadcast over radio or television, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Each initial Class B-2 Purchaser agrees that it will execute and
deliver to the Transferor, the Servicer, the Trustee and the Class B-2 Agent on
or before the Closing Date a letter in the form attached hereto as EXHIBIT A (an
"INVESTMENT LETTER") with respect to the purchase by such Class B-2 Purchaser of
an interest in the Class B-2 Certificates.
1. Each initial purchaser of a Class B-2 Certificate or any interest therein and
any Assignee thereof or Participant therein shall certify to the Transferor, the
Servicer, the Trustee and the Class B-2 Agent that it is either (A)(i) a citizen
or resident of the United States, (ii) a corporation or other entity organized
in or under the laws of the United States or any political subdivision thereof
which, if such entity is a tax-exempt entity, recognizes that payments with
respect to the Class B-2 Certificates may constitute unrelated business taxable
income or (iii) a person not described in (i) or (ii) whose income from the
Class B-2 Certificates is and will be effectively connected with the conduct of
a trade or business within the United States (within the meaning of the Code)
and whose ownership of any interest in a Class B-2 Certificate will not result
in any withholding obligation with respect to any payments with respect to the
Class B-2 Certificates by any Person (other than withholding, if any, under
Section 1446 of the Code) and who will furnish to the Class B-2 Agent, the
Servicer and the Trustee, and to the Class B-2 Owner making the Transfer a
properly executed U.S. Internal Revenue Service Form 4224 (and to agree (to the
extent legally able) to provide a new Form 4224 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable United States laws) or (B) an estate or trust the
income of which is includible in gross income for United States federal income
tax purposes.
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1. Any sale, transfer, assignment, participation, pledge, hypothecation or other
disposition (a "TRANSFER") of a Class B-2 Certificate or any interest therein
may be made only in accordance with this Section 8.1. Any Transfer of an
interest in a Class B-2 Certificate or a Commitment shall be in respect of at
least $2,000,000 in the aggregate, which may be composed of (i) Class B-2
Principal Balance or (ii) to the extent in excess of the Class B-2 Principal
Balance subject to such Transfer, Commitment hereunder. Any Transfer of an
interest in a Class B-2 Certificate otherwise permitted by this Section 8.1 will
be permitted only if it consists of a PRO RATA percentage interest in all
payments made with respect to the Class B-2 Purchaser's beneficial interest in
such Class B-2 Certificate. No Class B-2 Certificate or any interest therein may
be Transferred by Assignment or Participation to any Person (each, a
"TRANSFEREE") unless prior to the transfer the Transferee shall have executed
and delivered to the Class B-2 Agent and the Transferor an Investment Letter.
Each of SRPC and SRI authorizes each Class B-2 Purchaser to
disclose to any Transferee or prospective Transferee any and all financial
information in the Class B-2 Purchaser's possession concerning the Trust, SRPC,
SRI, Granite and Stage which has been delivered to the Class B-2 Agent, the
Facility Agent or such Class B-2 Purchaser pursuant to the Related Documents
(including information obtained pursuant to rights of inspection granted
hereunder) or which has been delivered to such Class B-2 Purchaser by or on
behalf of the Trust, SRPC, SRI, Granite Stage, the Transferor or the Servicer in
connection with such Class B-2 Purchaser's credit evaluation of the Trust, SRPC,
SRI, Granite, Stage, the Transferor or the Servicer prior to becoming a party
to, or purchasing an interest in this Agreement or the Class B-2 Certificates;
PROVIDED that prior to any such disclosure, such Transferee or prospective
Transferee shall have executed an agreement agreeing to be bound by the
provisions of Section 6.2 hereof.
1. Each Class B-2 Purchaser may, in accordance with applicable law, at any time
grant participations in all or part of its Commitment or its interest in the
Class B-2 Certificates, including the payments due to it under this Agreement
and the Pooling and Servicing Agreement (each, a "PARTICIPATION"), to any Person
(each, a "PARTICIPANT"); PROVIDED, HOWEVER, that no Participation shall be
granted to any Person unless and until the Class B-2 Agent shall have consented
thereto and the conditions to Transfer specified in this Agreement, including in
subsection 8.1(c) hereof, shall have been satisfied and that such Participation
consists of a PRO RATA percentage interest in all payments made with respect to
such Class B-2 Purchaser's beneficial interest (if any) in the Class B-2
Certificates. In connection with any such Participation, the Class B-2 Agent
shall maintain a register of each Participant and the amount of each
Participation. Each Class B-2 Purchaser hereby acknowledges and agrees that (A)
any such Participation will not alter or affect such Class B-2 Purchaser's
direct obligations hereunder, and (B) neither the Trustee, the Transferor nor
the Servicer shall have any obligation to have any communication or relationship
with any Participant. Each Class B-2 Purchaser and each Participant shall comply
with the provisions of subsection 2.5(c). No Participant shall be entitled to
Transfer all or any portion of its Participation, without the prior written
consent of the Class B-2 Agent. Each Participant shall be entitled to receive
additional amounts and indemnification pursuant to Sections 2.4, 2.5
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and 2.6 as if such Participant were a Class B-2 Purchaser and such Sections
applied to its Participation; PROVIDED, in the case of Section 2.5, that such
Participant has complied with the provisions of subsection 2.5(c) as if it were
a Class B-2 Purchaser. Each Class B-2 Purchaser shall give the Class B-2 Agent
notice of the consummation of any sale by it of a Participation and the Class
B-2 Agent (upon receipt of notice from the related Class B-2 Purchaser) shall
promptly notify the Transferor, the Servicer and the Trustee.
1. Each Class B-2 Purchaser may, with the consent of the Class B-2 Agent and
SRPC and in accordance with applicable law, sell or assign (each, an
"ASSIGNMENT"), to any Person (each, an "ASSIGNEE") all or any part of its
Commitment or its interest in the Class B-2 Certificates and its rights and
obligations under this Agreement and the Pooling and Servicing Agreement
pursuant to an agreement substantially in the form attached hereto as EXHIBIT B
hereto (a "TRANSFER SUPPLEMENT"), executed by such Assignee and the Class B-2
Purchaser and delivered to the Class B-2 Agent for its acceptance and consent;
PROVIDED, HOWEVER, that no such assignment or sale shall be effective unless and
until the conditions to Transfer specified in this Agreement, including in
subsection 8.1(c) hereof, shall have been satisfied. From and after the
effective date determined pursuant to such Transfer Supplement, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such Transfer
Supplement, have the rights and obligations of a Class B-2 Purchaser hereunder
as set forth therein and (y) the transferor Class B-2 Purchaser shall, to the
extent provided in such Transfer Supplement, be released from its Commitment and
other obligations under this Agreement; PROVIDED, HOWEVER, that after giving
effect to each such Assignment, the obligations released by any such Class B-2
Purchaser shall have been assumed by an Assignee or Assignees. Such Transfer
Supplement shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Assignee and the resulting
adjustment of Percentage Interests or Commitment Percentages arising from the
Assignment. Upon its receipt and acceptance of a duly executed Transfer
Supplement, the Class B-2 Agent shall on the effective date determined pursuant
thereto give notice of such acceptance to the Transferor, the Servicer and the
Trustee and the Servicer will provide notice thereof to each Rating Agency (if
required).
Upon instruction to register a transfer of a Class B-2
Purchaser's beneficial interest in the Class B-2 Certificates (or portion
thereof) and surrender for registration of transfer such Class B-2 Purchaser's
Class B-2 Certificate(s) (if applicable) and delivery to the Transferor and the
Trustee of an Investment Letter, executed by the registered owner (and the
beneficial owner if it is a Person other than the registered owner), and receipt
by the Trustee of a copy of the duly executed related Transfer Supplement and
such other documents as may be required under this Agreement, such beneficial
interest in the Class B-2 Certificates (or portion thereof) shall be transferred
in the records of the Trustee and the Class B-2 Agent and, if requested by the
Assignee, new Class B-2 Certificates shall be issued to the Assignee and, if
applicable, the transferor Class B-2 Purchaser in amounts reflecting such
Transfer as provided in the Pooling and Servicing Agreement. Such Transfers of
Class B-2 Certificates (and interests therein) shall be subject to this Section
8.1 in lieu of any regulations which may be prescribed
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under Section 6.3 of the Pooling and Servicing Agreement. Successive
registrations of Transfers as aforesaid may be made from time to time as
desired, and each such registration of a transfer to a new registered owner
shall be noted on the Certificate Register.
1. Each Class B-2 Purchaser may pledge its interest in the Class B-2
Certificates to any Federal Reserve Bank as collateral in accordance with
applicable law.
1. Any Class B-2 Purchaser shall have the option to change its Investing Office,
PROVIDED that such Class B-2 Purchaser shall have prior to such change in office
complied with the provisions of subsection 2.5(c) and PROVIDED FURTHER that such
Class B-2 Purchaser shall not be entitled to any amounts otherwise payable under
Section 2.4 or 2.5 resulting solely from such change in office unless such
change in office was mandated by applicable law or by such Class B-2 Purchaser's
compliance with the provisions of this Agreement.
A. TAX CHARACTERIZATION. It is the intention of the parties
hereto that the Class B-2 Certificates be treated for tax purposes as
indebtedness.
I. SECTION MISCELLANEOUS
A. AMENDMENTS AND WAIVERS. This Agreement may not be amended, supplemented or
modified nor may any provision hereof be waived except in accordance with the
provisions of this Section 9.1. With the written consent of the Required Class
B-2 Purchasers, the Class B-2 Agent, the Facility Agent, SRPC and SRI may, from
time to time, enter into written amendments, supplements, waivers or
modifications hereto for the purpose of adding any provisions to this Agreement
or changing in any manner the rights of any party hereto or waiving, on such
terms and conditions as may be specified in such instrument, any of the
requirements of this Agreement; PROVIDED, HOWEVER, that no such amendment,
supplement, waiver or modification shall (i) reduce the amount of or extend the
maturity of any Class B-2 Certificate or reduce the rate or extend the time of
payment of interest thereon, or reduce or alter the timing of any other amount
payable to any Class B-2 Purchaser hereunder or under the Supplement, in each
case without the consent of the Class B-2 Purchaser affected thereby, (ii)
amend, modify or waive any provision of this Section 9.1, or, if such amendment
would have a material adverse effect on the Class B-2 Purchasers, the definition
of "Class B-2 Invested Amount" or "Class B-2 Principal Balance", or reduce the
percentage specified in the definition of Required Class B-2 Purchasers, in each
case without the written consent of all Class B-2 Purchasers or (iii) amend,
modify or waive any provision of Section 7 of this Agreement without the written
consent of the Class B-2 Agent, the Facility Agent and Required Class B-2
Purchasers. Any waiver of any provision of this Agreement shall be limited to
the provisions specifically set forth therein for the period of time set forth
therein and shall not be construed to be a waiver of any other provision of this
Agreement.
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The Facility Agent may cast any vote or give any direction under the
Pooling and Servicing Agreement on behalf of the Class B-2 Certificateholders if
it has been directed to do so by (i) the Required Class B-2 Purchasers, (ii) the
Class B Purchasers (as defined in the Class B Purchase Agreement) required under
the terms of Section 9.1 of the Class B Certificate Purchase Agreement, and
(iii) by the Class A Purchasers (as defined in the Class A Certificate Purchase
Agreement) required under the terms of Section 9.1 of the Class A Certificate
Purchase Agreement.
A. NOTICES. (a) All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or, in the case of mail or telecopy
notice, when received, addressed as follows or, with respect to a Class B-2
Purchaser, as set forth opposite its signature to this Agreement or in the
Transfer Supplement, or to such other address as may be hereafter notified by
the respective parties hereto:
SRPC: SRI Receivables Purchase Co., Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SRI: Specialty Retailers, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Trustee: Bankers Trust (Delaware)
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust and Agency Group
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Mailing Address:
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
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The Class B-2 Credit Suisse First Boston, New York Branch
Agent or the Eleven Xxxxxxx Xxxxxx
Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000
Agent: Attention: Asset Finance Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Moody's: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Xxxxxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Standard Standard & Poor's Ratings Services
& Poor's: 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Surveillance Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(b) All payments to be made to the Class B-2 Agent or any Class B-2
Purchaser hereunder shall be made in United States dollars and in immediately
available funds not later than 2:30 p.m. New York City time on the date payment
is due, and, unless otherwise specifically provided herein, shall be made to the
Class B-2 Agent, for the account of one or more of the Class B-2 Purchasers or
for its own account, as the case may be. Unless otherwise directed by the Class
B-2 Agent, all payments to it shall be made by federal wire (ABA #0260-0917-9)
and telegraph name (CR SUISSE NY), to account number 904996-02, reference SRI
Receivables Master Trust, Series 1997-1, with telephone notice (including
federal wire number) to the Asset Finance Department of Credit Suisse First
Boston (212-325-9081).
(c) Any notices permitted or required hereunder to be given by SRPC
shall be effective if given on behalf of SRPC by the Servicer.
A. No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Class B-2 Agent, the Facility Agent or any Class
B-2 Purchaser, any right, remedy, power or privilege under any of the Related
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any of the Related
Documents preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in the Related Documents are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
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A. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of SRPC, SRI, the Transferor, the Servicer, the Class B-2 Agent, the
Facility Agent, the Class B-2 Purchasers, any Assignee and their respective
successors and assigns, except that SRPC, SRI, the Transferor and the Servicer
may not assign or transfer any of their respective rights or obligations under
this Agreement except as provided herein and in the Pooling and Servicing
Agreement, without the prior written consent of the Required Class B-2
Purchasers.
A. Successors to Servicer. (a) In the event that a transfer of servicing occurs
under Article VIII or Article X of the Pooling and Servicing Agreement, (i) from
and after the effective date of such transfer, the Successor Servicer shall be
the successor in all respects to the Servicer and shall be responsible for the
performance of all functions to be performed by the Servicer from and after such
date, except as provided in the Pooling and Servicing Agreement, and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof, and all references in
this Agreement to the Servicer shall be deemed to refer to the Successor
Servicer, and (ii) as of the date of such transfer, the Successor Servicer shall
be deemed to have made with respect to itself the representations and warranties
made in Section 4.2 (in the case of subsection 4.2(a) with appropriate factual
changes); PROVIDED, HOWEVER, that the references to the Servicer contained in
Section 5.1 of this Agreement shall be deemed to refer to the Servicer with
respect to responsibilities, duties and liabilities arising out of an act or
acts, or omission, or an event or events giving rise to such responsibilities,
duties and liabilities and occurring during such time that the Servicer was
Servicer under this Agreement and shall be deemed to refer to the Successor
Servicer with respect to responsibilities, duties and liabilities arising out of
an act or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during such time that the
Successor Servicer acts as Servicer under this Agreement; PROVIDED, HOWEVER, to
the extent that an obligation to indemnify the Class B-2 Purchasers under
Section 2.6 arises as a result of any act or failure to act of any Successor
Servicer in the performance of servicing obligations under the Pooling and
Servicing Agreement or the Supplement, such indemnification obligation shall be
of the Successor Servicer and not its predecessor. Upon the transfer of
servicing to a Successor Servicer, such Successor Servicer shall furnish to the
Class B-2 Agent copies of its audited annual financial statements for each of
the three preceding fiscal years or if the Trustee or any other banking
institution becomes the Successor Servicer, such Successor Servicer shall
provide, in lieu of the audited financial statements required in the immediately
preceding clause, complete and correct copies of the publicly available portions
of its Consolidated Reports of Condition and Income as submitted to the FDIC for
the two most recent year end periods.
(b) In the event that any Person becomes the successor to the
Transferor pursuant to Article VII of the Pooling and Servicing Agreement, from
and after the effective date of such transfer, such successor to the Transferor
shall be the successor in all respects to the Transferor and shall be
responsible for the performance of all functions to be performed by the
Transferor from and after such date, except as
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provided in the Pooling and Servicing Agreement, and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Transferor by the terms and provisions hereof, and all references in this
Agreement to the Transferor shall be deemed to refer to the successor to the
Transferor; PROVIDED, however, that the references to the Transferor contained
in Sections 2.5, 2.6 and 5.1 of this Agreement shall be deemed to refer to SRPC
with respect to responsibilities, duties and liabilities arising out of an act
or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during such time that
SRPC was Transferor under this Agreement and shall be deemed to refer to the
successor to SRPC as Transferor with respect to responsibilities, duties and
liabilities arising out of an act or acts, or omission, or an event or events
giving rise to such responsibilities, duties and liabilities and occurring
during such time that the successor to SRPC acts as Transferor under this
Agreement.
A. Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
A. Severability. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction.
B. Integration. This Agreement and the Class B-2 Fee Letter represent the
agreement of the Class B-2 Agent, the Facility Agent, SRPC, SRI, the Transferor,
the Servicer and the Class B-2 Purchasers with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Class B-2 Purchasers, the Class B-2 Agent or the Facility Agent relative
to subject matter hereof not expressly set forth or referred to herein or
therein.
A. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
A. Termination. This Agreement shall remain in full force and effect until the
earlier to occur of (a) payment in full of the Class B-2 Repayment Amount and
all other amounts payable to the Class B-2 Purchasers, the Class B-2 Agent and
the Facility Agent hereunder and the termination of all Commitments and (b) the
Series Termination Date; PROVIDED, HOWEVER, that if the Class B-2 Repayment
Amount and all other amounts payable to the Class B-2 Purchasers hereunder are
paid in full and all Commitments have terminated prior to the Series Termination
Date, the Class B-2 Agent shall notify the Trustee that thereafter all amounts
otherwise payable to the Class B-2 Purchasers hereunder shall be payable to the
Transferor or any Person designated thereby; and PROVIDED, FURTHER, that the
provisions of Sections 2.4, 2.5, 2.6, 6.1, 6.2, 7.7, 8.2, 9.11, 9.13 and 9.14
shall survive termination of this Agreement and any amounts payable to the
-41-
Facility Agent, the Class B-2 Agent or Class B-2 Purchasers thereunder shall
remain payable thereto.
A. Limited Recourse; No Proceedings. The obligations of SRPC, SRI, the
Transferor and the Servicer under this Agreement are several (except as
specifically provided herein) and are solely the corporate obligations of SRPC,
SRI, the Transferor or the Servicer, as applicable. No recourse shall be had for
the payment of any fee or other obligation or claim arising out of or relating
to this Agreement or any other agreement, instrument, document or certificate
executed and delivered or issued by SRPC, SRI, the Transferor and the Servicer
or any officer of any of them in connection therewith, against any stockholder,
employee, officer, director or incorporator of SRPC, SRI, the Transferor or the
Servicer. With respect to obligations of the Transferor, neither the Class B-2
Agent, the Facility Agent nor any Class B-2 Purchaser shall look to any property
or assets of the Transferor, other than to (a) amounts payable to the Class B-2
Agent, the Facility Agent or a Class B-2 Purchaser or to the Transferor under
the Receivables Purchase Agreement, any Supplement or the Pooling and Servicing
Agreement and (b) any other assets of the Transferor not pledged to third
parties or otherwise encumbered in any manner permitted by the Transferor's
Certificate of Incorporation. Each Class B-2 Purchaser, the Facility Agent and
the Class B-2 Agent hereby agrees that to the extent such funds are insufficient
or unavailable to pay any amounts owing to it by the Transferor pursuant to this
Agreement, prior to the earlier of the Trust Termination Date or the
commencement of a bankruptcy or insolvency proceeding by or against the
Transferor, it shall not constitute a claim against the Transferor. Nothing in
this paragraph shall limit or otherwise affect the liability of the Servicer
with respect to any amounts owing by it hereunder or the right of the Class B-2
Agent, the Facility Agent or any Class B-2 Purchaser to enforce such liability
against the Servicer or any of its assets.
A. Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the purchase of the Class B-2 Certificates
hereunder and the termination of this Agreement.
A. SUBMISSION TO JURISDICTION; WAIVERS. EACH OF SRPC, SRI, THE TRANSFEROR, THE
SERVICER, THE FACILITY AGENT, THE CLASS B-2 AGENT AND EACH CLASS B-2 PURCHASER
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT TO WHICH IT IS A PARTY, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO
THE NON-EXCLUSIVE GENERAL JURISDICTION OF XXX XXXXXX XX
-00-
XXX XXXXX XX XXX XXXX AND THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID,
TO SUCH PARTY AT ITS ADDRESS SET FORTH IN SECTION 9.2 OR AT SUCH
OTHER ADDRESS OF WHICH THE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE
RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO
XXX IN ANY OTHER JURISDICTION.
A. WAIVERS OF JURY TRIAL. EACH OF SRPC, SRI, THE TRANSFEROR, THE SERVICER, THE
FACILITY AGENT, THE CLASS B-2 AGENT AND THE CLASS B-2 PURCHASERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR
INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Certificate
Purchase Agreement to be duly executed by their respective officers as of the
day and year first above written.
SRI RECEIVABLES PURCHASE CO., INC.,
individually and as Transferor
By: /S/ XXXX X. XXXX
Name: Xxxx X. Xxxx
Title: Treasurer
SPECIALTY RETAILERS, INC.,
individually and as Servicer
By: /S/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Vice Chairman and Chief Financial
Officer (principal financial and
accounting officer)
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CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Class B-2 Agent and as Facility
Agent
By: /S/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: Associate
By: /S/ XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Associate
COMMITMENT: $10,000,000 CREDIT SUISSE FIRST BOSTON,
ADDRESS FOR NOTICES: NEW YORK BRANCH, as Class X-0 Xxxxxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:Asset Finance
Department By: /S/ XXXXXX X. XXXXXXXXX
Telephone: (000) 000-0000 Name: Xxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000 Title: Associate
INVESTING OFFICE:
Eleven Madison Avenue By: /S/ XXXXXXX XXXXX
Xxx Xxxx, Xxx Xxxx 00000-0000 Name: Xxxxxxx Xxxxx
Title: Associate
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EXHIBIT A
FORM OF INVESTMENT LETTER
[Date]
SRI Receivables Purchase Co., Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Treasurer
Re SRI Receivables Master Trust Class B-2
FLOATING RATE VARIABLE FUNDING CERTIFICATES, SERIES 1997-1
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Purchaser") pursuant to subsection 8.1(a) of the Class B-2
Certificate Purchase Agreement dated as of October 16, 1998 (as in effect, the
"Certificate Purchase Agreement"), among SRI Receivables Purchase Co., Inc., as
Transferor, Specialty Retailers, Inc., as Servicer, the Class B-2 Purchasers
parties thereto and Credit Suisse First Boston, New York Branch, as Agent and
Facility Agent. Capitalized terms used herein without definition shall have the
meanings set forth in the Certificate Purchase Agreement. The Purchaser
represents to and agrees with the Transferor as follows:
(a) The Purchaser is authorized [to enter into the Certificate
Purchase Agreement and to perform its obligations thereunder and to
consummate the transactions contemplated thereby] [to purchase a
participation in obligations under the Certificate Purchase Agreement].
(b) The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
its investment in the Class B-2 Certificates and is able to bear the
economic risk of such investment. The Purchaser has been afforded the
opportunity to ask such questions as it deems necessary to make an
investment decision, and has received all information it has requested in
connection with making such investment decision. The Purchaser has,
independently and without reliance upon the Agent, the Facility Agent or
any other Class B-2 Purchaser, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation
into the business, operations, property, financial and other condition and
creditworthiness of the Trust, SRPC, SRI, Granite, Stage, the Transferor
and the Servicer and made its own decision to purchase its interest in the
Class B-2 Certificates, and will, independently and without reliance upon
the Agent, the Facility Agent or any other Class B-2 Purchaser, and based
on such
-46-
documents and information as it shall deem appropriate at the time,
continue to make its own analysis, appraisals and decisions in taking or
not taking action under the Certificate Purchase Agreement, and to make
such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Trust, SRPC, SRI, Granite, Stage, the Transferor
and the Servicer.
(c) The Purchaser is an "accredited investor", as defined in Rule
501, promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), or is a sophisticated institutional investor. The
Purchaser understands that the offering and sale of the Class B-2
Certificates has not been and will not be registered under the Securities
Act and has not and will not be registered or qualified under any
applicable "Blue Sky" law, and that the offering and sale of the Class B-2
Certificate has not been reviewed by, passed on or submitted to any
federal or state agency or commission, securities exchange or other
regulatory body.
(d) The Purchaser is acquiring an interest in Class B-2 Certificates
without a view to any distribution, resale or other transfer thereof
except, with respect to any Class B-2 Purchaser Interest or any interest
or participation therein, as contemplated in the following sentence. The
Purchaser will not resell or otherwise transfer any interest or
participation in the Class B-2 Purchaser Interest, except in accordance
with Section 8.1 of the Certificate Purchase Agreement and (i) in a
transaction exempt from the registration requirements of the Securities
Act of 1933, as amended, and applicable state securities or "blue sky"
laws; (ii) to the Transferor or any affiliate of the Transferor; or (iii)
to a person who the Purchaser reasonably believes is a qualified
institutional buyer (within the meaning thereof in Rule 144A under the
Securities Act) that is aware that the resale or other transfer is being
made in reliance upon Rule 144A. In connection therewith, the Purchaser
hereby agrees that it will not resell or otherwise transfer the Class B-2
Certificates or any interest therein unless the purchaser thereof provides
to the addressee hereof a letter substantially in the form hereof.
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(e) This Investment Letter has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
affecting the enforcement of creditors' rights generally and general
principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:___________________________
Name:
Title:
-48-
EXHIBIT B
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto, among the Transferor Class B-2 Purchaser set forth in Item 2
of Schedule I hereto (the "TRANSFEROR CLASS B-2 PURCHASER"), the Purchasing
Class B-2 Purchaser set forth in Item 3 of Schedule I hereto (the "PURCHASING
CLASS B-2 PURCHASER"), and Credit Suisse First Boston, New York Branch, as Class
B-2 Agent for the Class B-2 Purchasers under, and as defined in, the Certificate
Purchase Agreement described below (in such capacity, the "CLASS B-2 AGENT").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 8.1(e) of the Class B-2 Certificate Purchase
Agreement, dated as of October 16, 1998, among SRI Receivables Purchase Co.,
Inc., as Transferor, Specialty Retailers, Inc., as Servicer, the Class B-2
Purchasers parties thereto, the Class B-2 Agent and Credit Suisse First Boston,
New York Branch, as Facility Agent (as from time to time amended, supplemented
or otherwise modified in accordance with the terms thereof, the "CERTIFICATE
PURCHASE AGREEMENT"; unless otherwise defined herein, terms defined in the
Certificate Purchase Agreement are used herein as therein defined);
WHEREAS, the Purchasing Class B-2 Purchaser (if it is not already a
Class B-2 Purchaser party to the Certificate Purchase Agreement) wishes to
become a Class B-2 Purchaser party to the Certificate Purchase Agreement and the
Purchasing Class B-2 Purchaser wishes to acquire and assume from the Transferor
Class B-2 Purchaser, certain of the rights, obligations and commitments under
the Certificate Purchase Agreement; and
WHEREAS, the Transferor Class B-2 Purchaser wishes to sell and
assign to the Purchasing Class B-2 Purchaser, certain of its rights, obligations
and commitments under the Certificate Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Class B-2 Agent of five counterparts of this
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Transferor Class B-2
Purchaser, the Purchasing Class B-2 Purchaser and the Class B-2 Agent, the Class
B-2 Agent will transmit to the Servicer, the Transferor, the Trustee, the
Transferor Class B-2 Purchaser and the Purchasing Class B-2 Purchaser a Transfer
Effective Notice, substantially in the form of Schedule III to this Supplement
(a "TRANSFER
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EFFECTIVE NOTICE"). Such Transfer Effective Notice shall be executed by the
Class B-2 Agent and shall set forth, INTER ALIA, the date on which the transfer
effected by this Supplement shall become effective (the "TRANSFER EFFECTIVE
DATE"). From and after the Transfer Effective Date the Purchasing Class B-2
Purchaser shall be a Class B-2 Purchaser party to the Certificate Purchase
Agreement for all purposes thereof.
(b) At or before 12:00 Noon, local time of the Transferor Class B-2
Purchaser, on the Transfer Effective Date, the Purchasing Class B-2 Purchaser
shall pay to the Transferor Class B-2 Purchaser, in immediately available funds,
an amount equal to the purchase price, as agreed between the Transferor Class
B-2 Purchaser and such Purchasing Class B-2 Purchaser (the "PURCHASE PRICE"), of
the portion set forth on Schedule II hereto being purchased by such Purchasing
Class B-2 Purchaser of the outstanding Class B-2 Invested Amount under the Class
B-2 Certificate owned by the Transferor Class B-2 Purchaser (such Purchasing
Class B-2 Purchaser's "PURCHASE Percentage") and other amounts owing to the
Transferor Class B-2 Purchaser under the Certificate Purchase Agreement or
otherwise in respect of the Class B-2 Certificates. Effective upon receipt by
the Transferor Class B-2 Purchaser of the Purchase Price from the Purchasing
Class B-2 Purchaser, the Transferor Class B-2 Purchaser hereby irrevocably
sells, assigns and transfers to the Purchasing Class B-2 Purchaser, without
recourse, representation or warranty, and the Purchasing Class B-2 Purchaser
hereby irrevocably purchases, takes and assumes from the Transferor Class B-2
Purchaser, the Purchasing Class B-2 Purchaser's Purchase Percentage of (i) the
presently outstanding Class B-2 Invested Amount under the Class B-2 Certificates
owned by the Transferor Class B-2 Purchaser and other amounts owing to the
Transferor Class B-2 Purchaser in respect of the Class B-2 Certificates,
together with all instruments, documents and collateral security pertaining
thereto, and (ii) the Purchasing Class B-2 Purchaser's Purchase Percentage of
the Commitment Percentage and the Commitment of the Transferor Class B-2
Purchaser and other rights, duties and obligations of the Transferor Class B-2
Purchaser under the Certificate Purchase Agreement. This Supplement is intended
by the parties hereto to effect a purchase by the Purchasing Class B-2 Purchaser
and sale by the Transferor Class B-2 Purchaser of interests in the Class B-2
Certificates, and it is not to be construed as a loan or a commitment to make a
loan by the Purchasing Class B-2 Purchaser to the Transferor Class B-2
Purchaser. The Transferor Class B-2 Purchaser hereby confirms that the amount of
the Class B-2 Invested Amount is $ and its Percentage Interest thereof is ___%,
which equals $ as of , 199_. Upon and after the Transfer Effective Date (until
further modified in accordance with the Certificate Purchase Agreement), the
Commitment Percentage and Commitment of the Transferor Class B-2 Purchaser and
the Purchasing Class B-2 Purchaser shall be as set forth in Schedule II to this
Supplement.
(c) The Transferor Class B-2 Purchaser has made arrangements with
the Purchasing Class B-2 Purchaser with respect to (i) the portion, if any, to
be paid, and the date or dates for payment, by the Transferor Class B-2
Purchaser to the Purchasing Class B-2 Purchaser of any fees heretofore received
by the Transferor Class B-2 Purchaser pursuant to the Certificate Purchase
Agreement prior to the Transfer Effective Date and (ii) the portion, if any, to
be paid, and the date or dates for payment, by the Purchasing Class B-2
Purchaser to the Transferor Class B-2 Purchaser of fees or interest received by
the Purchasing Class B-2 Purchaser pursuant to the Certificate Purchase
-50-
Agreement or otherwise in respect of the Class B-2 Certificates from and after
the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be payable from
and after the Transfer Effective Date to or for the account of the Transferor
Class B-2 Purchaser in respect of the Class B-2 Certificates shall, instead, be
payable to or for the account of the Transferor Class B-2 Purchaser and the
Purchasing Class B-2 Purchaser, as the case may be, in accordance with their
respective interests as reflected in this Supplement.
(ii) All interest, fees and other amounts that would otherwise
accrue for the account of the Transferor Class B-2 Purchaser from and after the
Transfer Effective Date pursuant to the Certificate Purchase Agreement or in
respect of the Class B-2 Certificates shall, instead, accrue for the account of,
and be payable to or for the account of, the Transferor Class B-2 Purchaser and
the Purchasing Class B-2 Purchaser, as the case may be, in accordance with their
respective interests as reflected in this Supplement. In the event that any
amount of interest, fees or other amounts accruing prior to the Transfer
Effective Date was included in the Purchase Price paid by the Purchasing Class
B-2 Purchaser, the Transferor Class B-2 Purchaser and the Purchasing Class B-2
Purchaser will make appropriate arrangements for payment by the Transferor Class
B-2 Purchaser to the Purchasing Class B-2 Purchaser of such amount upon receipt
thereof from the Class B-2 Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing Class B-2 Purchaser will deliver to Class B-2 Agent, the Transferor
and the Trustee an executed Investment Letter in the form of Exhibit A to the
Certificate Purchase Agreement and the forms, if any, required by subsection
2.5(c) of the Certificate Purchase Agreement.
(f) Each of the parties to this Supplement agrees and acknowledges
that (i) at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Supplement, and (ii) the Class B-2 Agent shall apply each
payment made to it under the Certificate Purchase Agreement, whether in its
individual capacity or as Class B-2 Agent, in accordance with the provisions of
the Certificate Purchase Agreement, as appropriate.
(g) By executing and delivering this Supplement, the Transferor
Class B-2 Purchaser and the Purchasing Class B-2 Purchaser confirm to and agree
with each other, the Facility Agent and the Class B-2 Agent and the Class B-2
Purchasers as follows: (i) other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned hereby free and
clear of any adverse claim, the Transferor Class B-2 Purchaser makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Certificate Purchase Agreement or the Pooling and Servicing Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Certificate Purchase Agreement or any other instrument or document
-51-
furnished pursuant thereto; (ii) the Transferor Class B-2 Purchaser makes no
representation or warranty and assumes no responsibility with respect to the
Trust, the financial condition of SRPC, SRI, Granite, Stage, the Servicer, the
Transferor or the Trustee, or the performance or observance by SRPC, SRI,
Granite, Stage, the Servicer, the Transferor or the Trustee of any of their
respective obligations under the Certificate Purchase Agreement, the Pooling and
Servicing Agreement or any other instrument or document furnished pursuant
hereto; (iii) each Purchasing Class B-2 Purchaser confirms that it has received
a copy of such documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Supplement; (iv) each
Purchasing Class B-2 Purchaser will, independently and without reliance upon the
Class B-2 Agent, the Transferor Class B-2 Purchaser or any other Class B-2
Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Certificate Purchase Agreement or the Pooling and
Servicing Agreement; (v) each Purchasing Class B-2 Purchaser appoints and
authorizes the Class B-2 Agent and the Facility Agent to take such action as
agent on its behalf and to exercise such powers under the Certificate Purchase
Agreement and the Pooling and Servicing Agreement as are delegated to the Class
B-2 Agent or the Facility Agent, as the case may be, by the terms thereof,
together with such powers as are reasonably incidental thereto, all in
accordance with Section 7 of the Certificate Purchase Agreement; and (vi) each
Purchasing Class B-2 Purchaser agrees (for the benefit of the Transferor Class
B-2 Purchaser, the Class B-2 Agent, the Facility Agent, the Class B-2
Purchasers, the Trustee, the Servicer and the Transferor) that it will perform
in accordance with their terms all of the obligations which by the terms of the
Certificate Purchase Agreement are required to be performed by it as a Class B-2
Purchaser.
(h) Schedule II hereto sets forth the revised Commitment Percentage
and Commitment of the Transferor Class B-2 Purchaser, the Commitment Percentage
and the Purchasing Class B-2 Purchaser and the initial Investing Office of the
Purchasing Class B-2 Purchaser, as well as administrative information with
respect to the Purchasing Class B-2 Purchaser.
(i) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
to be executed by their respective duly authorized officers on Schedule I hereto
as of the date set forth in Item 1 of Schedule I hereto.
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SCHEDULE I TO
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Class B-2 Certificate Purchase Agreement, dated as of October 16,
1998, among SRI Receivables Purchase Co., Inc., as Transferor,
Specialty Retailers, Inc., as Servicer, the Class B-2 Purchasers
party thereto and Credit Suisse First Boston, New York Branch, as
Class B-2 Agent and as Facility Agent.
Item 1: Date of Transfer Supplement:
Item 2: Transferor Class B-2 Purchaser:
Item 3: Purchasing Class B-2 Purchaser:
Item 4: Signatures of Parties to Agreement:
as Transferor Class B-2 Purchaser
BY:
Name:
Title:
BY:
Name:
Title:
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as Purchasing Class B-2 Purchaser
BY:
Name:
Title:
BY:
Name:
Title:
CONSENTED TO AND ACCEPTED BY:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Class B-2 Agent
By:
Name:
Title:
By:
Name:
Title:
-54-
SCHEDULE II TO
TRANSFER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS
AND COMMITMENT PERCENTAGES
[TRANSFEROR CLASS B-2 PURCHASER]
A. COMMITMENT PERCENTAGE:
Transferor Commitment Percentage
Prior to Sale: _____%
Commitment Percentage Sold: _____%
Commitment Percentage Retained: _____%
B. COMMITMENT:
Transferor Class B-2 Purchaser Commitment
Prior to Sale: $________
Commitment Sold: $________
Commitment Retained: $________
C. CLASS B-2 PRINCIPAL BALANCE:
Transferor Class B-2 Purchaser
Class B-2 Principal Balance Prior to Sale: $________
Class B-2 Principal Balance Sold: $________
Class B-2 Principal Balance Retained: $________
[PURCHASING CLASS B-2 PURCHASER]
A. Commitment Percentage: _____%
B. Commitment: $________
C. Class B-2 Principal Balance Owned Immediately
After Sale: $________
-55-
ADDRESS FOR NOTICES:
INVESTING OFFICE:
-56-
SCHEDULE III TO
TRANSFER SUPPLEMENT
Form of
TRANSFER EFFECTIVE NOTICE
To: [Name and address of
Transferor, Servicer, Trustee, the Transferor Class B-2
Purchaser and the Purchasing Class B-2 Purchaser]
The undersigned, as Class B-2 Agent under the Class B-2 Certificate
Purchase Agreement, dated as of October 16, 1998, among SRI Receivables Purchase
Co., Inc., as Transferor, Specialty Retailers, Inc., as Servicer, the Class B-2
Purchasers parties thereto and Credit Suisse First Boston, New York Branch, as
Class B-2 Agent for the Class B-2 Purchasers and as Facility Agent thereunder,
acknowledges receipt of five executed counterparts of a completed Transfer
Supplement. [Note: attach copies of Schedules I and II from such Agreement.]
Terms defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Transfer
Effective Date will be _____________, 199_.
Very truly yours,
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as
Class B-2 Agent
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
-57-
